Guantanamo and U.S. law
You know, when the Bush administration asserts that the detention of individuals at Guantanamo (or anywhere, for that matter) are in compliance with U.S. law, I have to wonder which law they mean.
When I say it absolutely violates U.S. law for the federal government to capture individuals inside or outside the United States, detain them in secret, and subject them (either through official policy or individual discretion in opposition thereof), I know exactly what law I'm talking about: the Constitution. You know, the supreme law of our country.
Amendment V states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The exception noted for War or public danger refer members of our military, not "enemy combatants". That leaves the amendment stating not that "no citizen" or "no American" shall be held without due process, but "no person".
Amendment VII sates, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Again, no distinction is made between citizens and non-citizens.
That's the letter of the law, and it fits the spirt of the law: the Constitution does not specifiy the rights of citizens, but the limits on the federal government. I've said it before, and it makes me tired to have to say it again. And the absence (or explicit denial) of authority to do something cannot be changed by a legislative act, but only by a Constitutional amendment. There having been none, well, the members of the Bush administration have violated their oaths to defend the Constitution, and are therefore traitors who must be removed from office immediately -- at the very least.
But I should point out one more thing. The Executive branch (including the military, and the Guantanamo base) does not have its own money, but gets appropriations from Congress. So every legislator who votes to approve appropriations for prisoner detention at Guantanamo (or for extraordinary renditions) is every bit as much of a traitor as Bush is. Further, the ones bitching about U.S. actions that are un-Constitutional while still voting to pay for them are out-and-out cowards. Observe, the fatal flaw of democracy: the mob, and those who pander to it. If politicians would have the courage and the eloquence to enumerate the reasons against and the costs of un-Constitutional actions, maybe citizens would actually listen to him or her. But, like the number of licks to the center of a Tootsie-Pop, the world will never know.
When I say it absolutely violates U.S. law for the federal government to capture individuals inside or outside the United States, detain them in secret, and subject them (either through official policy or individual discretion in opposition thereof), I know exactly what law I'm talking about: the Constitution. You know, the supreme law of our country.
Amendment V states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The exception noted for War or public danger refer members of our military, not "enemy combatants". That leaves the amendment stating not that "no citizen" or "no American" shall be held without due process, but "no person".
Amendment VII sates, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Again, no distinction is made between citizens and non-citizens.
That's the letter of the law, and it fits the spirt of the law: the Constitution does not specifiy the rights of citizens, but the limits on the federal government. I've said it before, and it makes me tired to have to say it again. And the absence (or explicit denial) of authority to do something cannot be changed by a legislative act, but only by a Constitutional amendment. There having been none, well, the members of the Bush administration have violated their oaths to defend the Constitution, and are therefore traitors who must be removed from office immediately -- at the very least.
But I should point out one more thing. The Executive branch (including the military, and the Guantanamo base) does not have its own money, but gets appropriations from Congress. So every legislator who votes to approve appropriations for prisoner detention at Guantanamo (or for extraordinary renditions) is every bit as much of a traitor as Bush is. Further, the ones bitching about U.S. actions that are un-Constitutional while still voting to pay for them are out-and-out cowards. Observe, the fatal flaw of democracy: the mob, and those who pander to it. If politicians would have the courage and the eloquence to enumerate the reasons against and the costs of un-Constitutional actions, maybe citizens would actually listen to him or her. But, like the number of licks to the center of a Tootsie-Pop, the world will never know.
posted by heavynettle at 18:41
12 Comments:
What's your read on the Constitution vis-a-vis prisoners of war? (I've never quite understood what an unlawful combatant or enemy combatant or all that is supposed to be.) I can't imagine treating armed enemies, be they foreigners or domestic rebels, as criminals. I don't know what laws are involved, but precedents that I'm aware of generally follow two lines: 1) keep captured enemies in prison until the war is over, troops who come in secret (like saboteurs, would-be suicide bombers, etc.) are spies and can be summarily executed, or at least can be executed after a military tribunal has confirmed their status.
Personally, I don't have a problem with either of those outcomes. The war against Al-Qaeda and the Taliban, etc. may well go on for a very long time, but I see no reason to release proven terrorists (I know not everyone in Gitmo is, but some certainly are) back to the front. Why the Bushies had to make up the statuses they did, presumably to circumvent the Geneva convention's prohibition on torture, is one of the administration's odder moves. Odder still was trying someone like Z. Mousauwi (sp?) in a civilian court.
Then comes Padillo, who may or may not be guilty, but has certainly had his case mishandled in every conceiveable way, including violations of plain common sense.
What I meant to say was, there are two ways to treat prisoners:
1) hold uniformed prisoners until the war is over
2) un-uniformed assassins, spies, sabotuers, etc. get stood up against a wall and shot.
Personally, I'm cool with both outcomes, provided there's more than a kangaroo court to rubberstamp the executions.
If one takes the wartime exception to include prisoners of war, I have to point out that the need for such expediency comes from the chaos of warfare, and the need to detain known enemies and suspected spies on the battlefield.
For my thoughts on the endless war against Al Qaeda, see George Orwell's 1984.
Anyway, the problems with the Guantanamo facility and extraordinary rendition stem from the simple fact that the prisoners are not captured in battle, but as a result of what is essentially law enforcement activity. I simply cannot emphasize this enough. Our military (and "civilian" intelligence) is operating outside a war-like capacity in countries outside our own -- as occupiers (the de facto government) in Iraq, enforcers (de facto counter-intel and police) in Afghanistan, or kidnappers in other countries. I mean, crimes like murder and arson are acts of war only when they are carried out by a representative of a state -- otherwise, they're just crimes, under the authority of the state that has jurisdiction. In war, you know, one state calls it wrong, the other state calls it right. The absence of a dissenting state leaves the actor in a crime at the mercy of the state that has jurisdiction. Where our state has jurisdiction, that authority is explicitly limited by the Constitution -- and must be validated by due process. Where another state has jurisdiction, we can let that state handle it, seek extradition, or go to war to get that individual -- but, again, that is to get the individual into our jurisdiction, with all the authorities and limits thereto appertaining.
The war distinction is central to the problem with the "War on Terror" or the "War against Al Qaeda" -- it is not actually a war. The administration has said as much in not referring to the detainees as POWs, but they want it both ways. To be sure, we can treat POWs of nations that have not signed the Geneva Convention however the hell we want. POWs of signatory nations should be treated in accordance with that treaty, unless we decide to abrogate it. But detainees of the U.S. government who are not POWs, must be treated in accordance with the Constitution's limitations on federal authority.
I'm so strident about this because the granting of war authorities to combat Al Qaeda is unnecessary and dangerous. When we need to go to war, as noted above, we can do it, but what we have now is a borderless war, where the enemy is whichever individual the right person in the executive branch says it is. These are exactly the kinds of situations that the limitations were meant to cover, to protect individuals from arbitrary exercise of power by a tyrannical government. What recourse, after all, do I have if the Bush administration calls me a terrorist? If I were identified as a member of Al Qaeda, I would be an enemy combatant, vulnerable to being tossed into the black hole of rendition and interminable detention.
Even if I need not fear for myself, there is a problem with treating detainees as prisoners-of-war without the POW status: we're recruiting for our purported enemies. I mean, if I, or someone I cared about, were unjustly detained and I was left with no recourse, I would conspire with anyone who'd have me to kill everyone who represented the organization or state responsible. If I myself were imprisoned and released with no compensation, my house and family destroyed, well, what would keep me from strapping on a bomb and charging the responsible agents? And can I presume any greater understanding or restraint on the part of persons less intelligent or educated than I?
The Constitution is meant to protect each of us not just from direct abuse by the federal government, from the dangers of retaliation for unjust actions by it. We're just as dead of a cop shoots us by mistake as if an angry foreigner bombs our bus; just as violated if a we are unjustly imprisoned by our government as if we were kidnapped by Son of the Revenge of the Bride of Al Qaeda. That's why I take these little, seemingly arcane, distinctions so seriously.
So in talking about the detainees in Guantanamo, Secretary Rice referred to persons "picked up on battlefields in Afghanistan", but also those who were "picked up because of their associations with Al Qaeda". See my problem? "Picked up on battlefields" may be problematic, because those battlefields may be akin to shoot-outs during bank robberies rather than raids of hide-outs of militants, but I'm willing to split the difference and call those guys prisoners-of-war, so why the fuck doesn't the administration call them that? At any rate, Afghanistan is a signatory to the Geneva Convention, so unless the Taliban government explicity repealed that treaty, it would make sense to treat POWs as such, unless the individual is a citizen of a country that is not a signatory.
The latter group, though, makes me uncomfortable. What are these "associations"? It sounds more like rounding up suspects than capturing combatants . . . which makes me think of the military acting as police, and the limitations we put on our own police, including, you know, Amendments V and VII.
Conclusion? Gitmo and extraordinary renditions still suck.
Fine, I mistyped the link. The signatories can be referenced from here.
I would say that the Taliban abrogated the treaty by their behavior. But I find torture morally reprehensible, and it degrades us as individuals and sullies our institutions. And it's counter-productive. And generally ineffective, from the interviews I've read with experts.
I have to respectfully disagree though that our counter-measures against the Taliban and Al-Qaeda should be treated as law enforcement. Whatever the legal status of the war from a U.S. standpoint in Afganistan/Baluchistan, the southern Philipines, and other locales, they declared war on us. Treating some captives as prisoners of war is an excellent idea, and I wish we would, as well as unilaterally uphold the principles of the Geneva Convention. But when suicide bombers who target civilians are caught, or the people who send them are caught, I think a military tribunal and sentence (death, if the charges are substantiated, IMO) meets the ethical and legal requirements of war time.
I agree with your statements that the endless state of war is being used as a pretext for the Bush administration to institute a creeping fascist regime, but their own perfidy does not alter the nature of the threat or the actual state of war in which we are engaged in Afganistan and adjacent territories.
By what action did the Taliban abrogate the treaty? The only action that I'm familiar with that would abrogate a treaty is, you know, violation of the terms of that treaty. In what case did the Taliban violate the Geneva Convention, apart from their behavior toward either the Soviet occupation or in the civil war? If those actions are considered abrogation, and one forgets our own actions in violation of the Geneva Convention (extraordinary renditions), I guess I could concede that fighters captured there are POWs of nations that are not signatories, and that, as I said earlier, we can do whatever the hell we want with them.
Actually, if you concede the fascist creep, we don't really disagree too much. But, if you'll forgive my saying, you're engaging in the same insanity and loose language of which the Bush administration is guilty. The "nature of the threat"? There is no "threat": there are threats, all different. If we were acting in proportion to the nature of the threat, we wouldn't have invaded Iraq. We wouldn't give a fart about a bunch of guys on the other side of the planet plotting to kill Americans in the U.S., because they couldn't do it from there. They couldn't carry out their scheme on the flight over (if they and their baggage had been checked), they couldn't do it in their apartment, they couldn't do it walking down the street: they would have to bring (already covered) or acquire the tools to carry out the action, and would have to take other antecedent steps -- like going to the place. As I said earlier, security is contextual: we don't need to kick in doors in Baghdad to keep someone from blowing up a nuclear plant here: we just need to keep unauthorized persons from entering a suitable security zone around the facility, keep ranged weapons from entering the country, and monitor transactions in country. The reasons we shouldn't do it, not needing to, are to protect each of us from intrusion and abuse by our own government, and to keep from expanding the rolls of willing bomb-mules.
There is a fundamental difference between a guy firing a Kalashnikov at you and a guy you arrest in his home because a source of untested validity tells you he's plotting something. Even cops, after all, are authorized to used what force is required in neutralizing a violent suspect, or one with bombs strapped to his chest. The difference is between catching someone "in the act" and acting to preempt that act: in the latter case, if less so in the former, it is absolutely essential to make sure that the information used is accurate, and to resolve the question of the individual's alleged participation in a plot as quickly as possible.
The administration has not effectively demonstrated that every individual we hold fits the Kalashnikov model and not the other one. If someone is plotting crimes against citizens of the United States (other than those who are forcibly occupying his country, which puts the crime into an entirely different context), that guy is a responsibility of the U.S. For the safety of all of us, folks under that responsibility must be afforded the same rights as we assume accrue only to American citizens, because citizenship is also decided by the federal government.
Anyone can be a traitor, and be held interminably without access to objective evaluation of the reasons for holding him or her. Before WWI, British thinkers had begun questioning the ability of their government to have democracy at home and empire abroad. A study of how local law enforcement has trumped up threats to get grants shows that in doing so they have labelled Americans who are merely politically active as terrorist threats.
I think allowing residents of your country to plan lethal attacks on civilian buildings--the Twin Towers--using civilian aircraft taken over by hijacking negates any standard of war. Yes, I'll concede Dresden and Tokyo, but all the same. Civilians get killed in war; which is one of the million reasons war should be avoided at most costs. But intentionally targeting civilians is beyond the pale.
This is what the 4th Geneva convention has to say about civilians:
Protected civilians MUST be:
- Treated humanely at all times and protected against acts or threats of violence, insults and public curiosity.
- Entitled to respect for their honour, family rights, religious convictions and practices, and their manners and customs.
- Specially protected, for example in safety zones, if wounded, sick, old, children under 15, expectant mothers or mothers of children under 7.
- Enabled to exchange family news of a personal kind. - Helped to secure news of family members dispersed by the conflict
- Allowed to practise their religion with ministers of their own faith. Civilians who are interned have the same rights as prisoners of war. They may also ask to have their children interned with them, and wherever possible families should be housed together and provided with the facilities to continue normal family life. Wounded or sick civilians, civilian hospitals and staff, and hospital transport by land, sea or air must be specially respected and may be placed under protection of the red cross/crescent emblem.
Protected civilians must NOT be:
- Discriminated against because of race, religion or political opinion. - Forced to give information.
- Used to shield military operations or make an area immune from military operations.
- Punished for an offence he or she has not personally committed. - Women must not be indecently assaulted, raped, or forced into prostitution.
Source: http://www.ppu.org.uk/learn/texts/doc_geneva_con.html
Entitled to respect for their honour, family rights, religious convictions and practices, and their manners and customs.
Hmmm...considering what I've heard about Korans being thrown in the toilet (denigned, but consistent with other behaviors) and interrogators pretending to smear menstrual blood on prisoners (admitted) to keep them from praying, I think I see why the administration is withholding Geneva rights from Guantanamo.
It's all quite sad that it's come to this. And now Alberto Gonzalez, a very scary guy IMHO, is publically threathening to use the NSA to pursue leakers and reporters who try to talk to them--it didn't take long for Americans to become public enemy #1 once the adminstration headed down the slope to fascism. Just as a tax-payer, I'm offended at the adminstration's priorities. I don't recall any NYT reporters lobbing bombs. sigh
Aside from law, I think Bush basically has shown all the mistakes made by novice managers; especially fear of underlings ("There're talking about me in the washroom! It must be STOPPED!") and forcing through policies--like wars--without getting buy-i--like a declaration of war. Sure, they talk about you in the washroom; you're the boss. Sure, you can force your policy through--just don't expect anyone who wasn't consulted to actively promote it or to take the heat for it when it turns out you made a mistake. "What? Oh, yeah, I would have warned him about that...if he had ever listened to us hens."
Surely Harvard feels the damage the legacy degree has done to their repulation? Unless that's all they have to teach: hire loyal underlings to do all the detail work, trust them without asking for details, talk in broad generalities, outsource any job you can, give golden parachutes--or freedom medals--to those who fail to perform, etc.
Fuck. Now I'm tired.
Wow, that was an . . . interesting progression.
I still have a problem with calling the 9-11 attacks acts of war: they were not backed by a state, whose military we would have to defeat to get justice. Al Qaeda is more akin to the mob than to the Soviet Union. Or maybe to anarchists, since the mob could be counted on to be rational.
And I'm not sure what you mean by that first paragraph (in the first of your two posts): thieves and murderers almost always target civilians, too. My point this whole time (well, one of them) is that we go to war with states because that's what's necessary to defeat a military defense of the folks who are attacking us. War is not what we have with Al Qaeda: it's investigation that should be routine anyway (suspicious individuals in regulated places, suspicious purchases of bomb materials, etc.) and apprehension of suspects -- or use of suitable force to neutralize one "in the act".
This is not a war, and does not require exceptional measures: reassassments of security at locations, etc., but no abandonment of restraint either in spying on citizens or kidnapping foreigners. Again, I'm not really talking about however many of the Gitmo detainees who are actual POWs; I'm talking about everybody else.
I'm so fucking sick of the "War" on terror, of the use of martial language to refer to what are still isolated groups of otherwise law-abiding folks hiding in our population and throughout the world: criminals, to be located, investigated, and neutralized as any other violent, destructive group (you know, like the eco-terrorists). If we're concerned about those outside our borders, we work with other governments; and if they don't help, we go to war with them. But we are not currently at war with anyone: we're just committing acts of war with illegitimate legislative authorization.
Geez, now I'm tired.
Well, I agree with you on the attacks on civil liberties and on civilized behavior in general.
I have to disagree with you as to whether or not we are at war though. Al-Qaeda actually does control substantial territory, and was more or less a co-ruler in Afganistan. If we had pursued THAT war agressively we could have wiped out Al-Qaeda back in 2002. Just because they don't control a state doesn't mean they aren't a "government." They certainly take over quickly and establish themselves as The Law whereever they go. Right now they control a lot of the Afgan countryside, as well as huge swaths of western Pakistan.
But you ask an interesting question, one I'm not sure has an unequivocal answer. Namely, can you be an army if you do not have a state? For historical examples of this, I'd point to the Knight Templars, a very meddlesome bunch who did their best to prevent detante from ever being reached between Christian and Muslim "states" in the Middle Ages. They occassionally took over territory--like Malta--but having territory wasn't what enabled them to be such a pain in the ass, or a military force (as opposed to gang-bangers.) The IRA is another good example, and it's use of local support to conduct a guerilla war is, I think, analogous to Al-Qaeda in Pakistan and Afganistan (the Shining Path in Peru is another). For that matter, most rebelions or insurgencies at least start out as not "controlling" territory or government in the traditional sense, but even when they are ineffective or worse organized than, say, the Mob, it's their stated aims--control of the government, imposition of their political aims through force--that makes them an "army," not just gang-bangers you throw in jail. Even our own Constitution makes allowances for use of military in times of insurrection.
I guess we're talking past each other on this, because whether an enemy constitutes a state is not really my point. I see, rather, war as a tool for neutralizing an obstacle to our exercise of jurisdiction in a given matter, and police action as exercise of our jurisdiction without said resistance. That Al Qaeda controls territory obscures the fact that not everyone in the territory they control is Al Qaeda.
I look to our responses to Pancho Villa and Manuel Noriega as instructive here. When Black Jack Pershing invaded Mexico, he was not engaged in war with Mexico, but with an ultimately futile effort to apprehend and bring to (U.S.) justice a leader of a group of brigands. We effectively went to war with Panama (no declaration, dammit!) because its head of state was a (perceived) threat to the U.S., but upon detaining Noriega, we exercised justice in accordance with Constitutional limitations. Neither is a perfect analogy: al Qaeda is multi-national and decentralized, and even somewhat fictitious, in that groups and individuals who assert affiliation with al Qaeda often receive no direction or funding from al Qaeda; Noriega wasn't killing Americans (unless you count his participation in the deadly drug trade -- I'm speaking ironically there).
There is no place we can fight a war against al Qaeda: in Afghanistan, they did not control the Afghan military even under the Taliban, and now they are just one (of many) insurgents against Afghanistan's government, against whom we are conducting a Pershing-esque campaign with that goverenment's permission and even participation. That would be characterized best, perhaps, as our participation in a civil war, and I would describe our occupation of Iraq in similar terms, at this point. In Pakistan, we are cooperating with the existing regime to do something similar there.
Admittedly, this is a semantic distinction, but the administration is using "war" to justify everything. In war, we have a monolithic enemy, excepting perhaps a fifth column we control within that enemy's territory. In police action, the enemy is diffuse and hidden within and among non-enemy personnel. None of the campaigns in which our military is engaged currently can be fought as wars, but must exercise the caution and discretion of police actions. Similarly, prisoners captured through these campaigns must be treated within the framework of our own laws. Otherwise, we widen the conflict, while not gaining the simplicity and clarity of war.
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