Almost a year ago, on the celebration of Martin Luther King’s birth and just as the Israeli military assault on Gaza was coming to a close, I wrote a piece titled, Israel in Gaza: A Time Comes When Silence is Betrayal.[1]   In that piece I spoke of the role of American Jews and of Americans in remaining silent in the face of horrendous human rights violations perpetrated on Palestinians.  I acknowledged that:  “ For too long, and I do not exempt myself, most of us have stood silently by or made only a marginal protests about the massive violations of Palestinian rights carried out by Israel.” I pointed out that for “as long as this silence continues so will the U.S. billions in aid and arms that facilitates the killings of Palestinians.”

Since that time, I and many others, Jews and non-Jews alike, have come some distance toward breaking the silence. We knew while the assault was continuing that we were witnessing massive crimes. We watched as most of the world stood by. Gaza, I think for many of us, demanded that we no longer stand on the sidelines. 

I must admit to my shock at reading the Goldstone Report, the report of the UN Fact-Finding Mission on the Gaza Conflict.[2]  Fact by fact it documented violations of the laws of war and human rights law that were chilling. The report put the assault in the context of the responsibilities under law of an occupying power which Israel is in the West Bank, East Jerusalem and Gaza. It addressed the annexation of East Jerusalem, the building of the wall, 85% of which is illegally located in occupied territory, the pass laws and the settlements. It addressed the blockade of Gaza which began years before the December 2008 assault and the collective punishment of the Palestinian people.  As to the war, the Report concluded that the “military operations were directed by Israel at the people of Gaza as a whole” to “punish them” and “in a deliberate policy of disproportionate force aimed at the civilian population.”  Each example was more disturbing than the one before and the cumulative effect was horrifying: deliberate targeting of civilians, the intentional destruction of the infrastructure of Gaza including fuel supplies, the sewer system, the only flour mill and the Palestinian legislative building.

The killing statistics tell us almost all we need to know: over a thousand Palestinians were killed (estimates run from 1,166 to 1,444), most of them civilians; 13 Israelis lost their lives of which three were civilians. Imagine Gaza as an overcrowded prison, for that is what it is, with no ability for people to hide, escape or defend themselves. Then imagine an assault with impunity from the air, the sea and the land. Gaza was no accident. It was not a mistake. Israeli leaders justified the destruction of civilian objects: “destroy 100 homes for every rocket fired.”  The Israeli government claimed that “there is really no distinction to be made between military and civilian objectives as far as government and public administration in Gaza are concerned.” [3] 

After the Goldstone report there cannot be, if there ever was, any doubt about the need for investigation and prosecution of the criminality of the military assault on Gaza. Judge Goldstone is one of the most preeminent jurists in the world—he would be in my top 3—and I am not sure who the other two are. His credentials are impeccable. A South African courageously opposed to apartheid, a justice of the Constitutional Court of South Africa and the chief prosecutor of the special UN tribunals for Rwanda and the Former Yugoslavia—and a Jew as well. Yet, attack him and his report is exactly what Israel and the United States have done.  The U.S. State Department called it “deeply flawed,” but did not elaborate. Israel, which had refused to cooperate in the investigation, said it was appalled and disappointed by the Report claiming it effectively ignored Israel’s right of self-defense, makes unsubstantiated claims about its intent and challenges Israel’s democratic values and rule of law. Even if Israel was acting in self-defense, although many would dispute this, that right does not grant permission to commit war crimes. And yes, the Report challenges Israel’s commitment to the rule of law: it does not seem to have a commitment when it comes to Palestinians.  Despite these protestations, as Shakespeare wrote:  “truth will come to light; murder cannot be hid long….but at the length truth will out.” Well it has, but truth still needs a push—a push into action.

That is why I am going to Gaza with the Code Pink Freedom March:[4] because truth needs a push.  It’s straightforward. I want to break the blockade. I want to see for myself the damage caused the weapons bought with my tax dollars. I want it understood that Israel does not kill in my name. I want to follow words with actions.

12/14/2009

[1] http://www.michaelratner.com/blog/?p=40

[2] http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm

[3] Goldstone at para. 379.

[4] http://www.gazafreedommarch.org/article.php?list=type&type=416

At a reception I attended the other day a progressive acquaintance came up to me and said the left “must stop bashing Obama. Keep doing it and he will lose the election. We should be thankful for what we have.” I am not sure he thought that I was one who bashed Obama or he just wanted to get that message out in the community. As it happens I do not “bash Obama” whatever that means; but I am sharply critical of a number of his policies and practices and those of his administration. (This is not to say I would have preferred McCain to win; I would not have and on some issues, mostly very safe ones, Obama has made some difference, e.g. Ledbetter Fair Pay Act, ending the HIV exclusion.) I responded to my acquaintance: “It won’t be the criticism of progressives that will lose him the election—we hardly have that kind of power. It is his own actions especially around economic issues that could make his reelection difficult; actions that have alienated and angered significant segments of the unemployed American population. I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

In arguing that we should mute our criticisms of Obama we are being asked to accept administration actions that are unacceptable; practices that will involve the deaths of thousands and the violation of our own constitution and binding treaties. I have always believed we must advocate and act on principle and that is the way to make change.  So when we see that Obama will continue the preventive detention scheme that underlies Guantanamo, that he will have detainees tried before military commissions, that he will continue the incommunicado detentions at Bagram and hide detainees from the Red Cross, we cannot and should not stand by in silence. We are seeing the continuation of Bush’s law and the deterioration of fundamental protections of freedom. When we see Obama hide illegal acts behind claims of “state secrets;” when he refuses to have the torture conspirators investigated and prosecuted; and when he even welcomes some of the conspirators into his administration, we must speak up. Granting impunity to officials who torture is to insure that we will again be a nation of torture and that the message heard by every petty dictator around the world is: “The United States can torture in the name of national security and so can we.”  When we see officials of this administration attack the Goldstone report which documents war crimes in Gaza, we understand the deep hypocrisy of this government.

Nor can there be any screaming that is too loud in opposition to the wars that Obama is continuing without end. The July 2011 beginning withdrawal date from Afghanistan was shown to be a fiction within an hour of Obama’s speech. Obama like those before him accepts that “We are the United States and war is what we do.” Obama and the Presidents before him are bleeding our country and world. Of course, I do not expect miracles from one man on top of a huge national security establishment that is hard to buck. Rome was not built in a day and neither will it be dismantled in a day. But I don’t see a lot of dismantling going on. What I see is more and more building of a national security state—perhaps with a softer hand—and that is alarming.

As I said when I began this piece I do not think progressive and liberal criticisms on most of these issues or other disappointments such as Obama’s failure to end “Don’t Ask, Don’t Tell” will have much affect the next Presidential election. Even the war probably won’t have much to do with who is our next President. Obama took a safe course, at least for himself and the next election: he gave the generals roughly what they asked for and the Republican Secretary of Defense, like the cat that ate the canary, is smugly satisfied.  

It seems likely to me that the economy will be Obama’s Waterloo. He has shoveled billions and billions into the big banks, and the wars and almost nothing into creating jobs and saving people’s homes.  Regarding the jobs meeting he convened to help with ideas about how to reduce unemployment, he said there are “limits to what government can do and should do,“ and that he was open to “responsible” and “demonstrably good” ideas to create jobs. I don’t think that is what the over 15 million unemployed in the country wanted to hear. They need jobs and they especially did not want to hear Obama say there was not going to be enough money to do it. The danger here is not just that Obama will lose the next election; but it’s one we have already begun to see: a right wing populism that often occurs in times of great economic dislocation, income disparities and joblessness.

We are at a time of great economic insecurity; a time when fundamental rights are under threat from our own government and a time when we are the world’s warriors. Silence or passive acquiescence is complicity. Enough already!  We can applaud Obama’s actions when they are right; we cannot and should not excuse or explain away his actions when they are wrong. If we don’t speak out, who will?

Last week was a week of bad portents if we are trying to divine the direction of the Obama administration regarding some fundamental human rights questions, particularly regarding the treatment of detainees at Guantanamo.

One of Obama’s earliest acts was to order that Guantanamo be closed within one year. The executive order laid out three options as to how to deal with the remaining 245 detainees: try them, repatriate them or hold them in some other legal way.  We at CCR opposed a three option solution to Guantanamo. We believe there only two options: trials or repatriation. We oppose any form of preventive detention which is what Guantanamo is today. We oppose putting a legal wrapping on Guantanamo no matter where it is located or who does the wrapping. We remained hopeful that the third option, preventive detention, would not be a choice.   We may be losing that fight. On April 30^th Defense Secretary Gates said that as many as 100 Guantanamo detainees could end up held without trial in the United States.  A day before Attorney General Holder had this to say in Berlin:

“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”

The answer Mr. Holder is you can’t.  All the due process in the world does not diminish the fundamental human rights violation in jailing someone, possibly forever, without charging or convicting him of a crime.  Big Brother may be alive and well in the new administration.

As another one of his earliest acts Obama suspended the military commissions at Guantanamo. He did so for a period of four months.  It was better than letting them continue, but not much better. For what was to come after the four months?  At CCR we were worried. Why did he not end them, get rid of them all together? After all, they were entirely discredited. In seven years there were only two minor trials and evidence derived from abuse and torture was still permitted. Why should there be any kind of special courts in a democracy with a 225 year history of regular trials in regularly constituted courts—U.S. federal courts. The main reason for special courts is that it is easier to convict people when the rules are made up after the fact: the rules are bent toward conviction.

In a depressing and infuriating revelation in the New York Times on May 2, the revival of military commissions is stated as almost a sure thing.  The reason according to some administration lawyers is that it would be difficult to prosecute defendants in regular courts because they had been brutalized and because prosecutors want to use hearsay evidence. That is some reason. Let’s just put it starkly. Such trials would be an abomination, an abomination approved by our new President. 

Although not directly related to Guantanamo, but one that could have an effect on the issues outlined above is the appointment of a new Supreme Court justice. I was dismayed to read all of the verbiage coming out of pundits that he will choose a pragmatist and not a “larger than life liberal.” Let’s hope it is not true and let’s try to make sure it won’t come to pass. Why did the Republicans with too much Democratic support (no filibuster) have no trouble shoving two arch conservatives down our throats?  I don’t get it.

Today, April 23rd, I awoke to read that a number of human rights type groups have called on President Obama to create a commission of accountability to investigate and report publicly on torture and the cruel and inhumane treatment of detainees. There is not a word in the petition about criminal prosecutions of the torture team. Yet, I know that some of these groups would say they still want prosecutions. Sadly, this call and a commission if set up, would almost guarantee that prosecutions won’t happen.

Briefly, here is why. We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the Whitehouse and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the US and the world are covered with the US misdeeds. 

So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission. Think if this list of human rights groups had demanded prosecutions. We would be closer and not farther from the goal.

I am sure some of these human rights groups will argue that a commission will or can be a first step to prosecutions. Sure, it is possible, but unlikely for the reasons I gave in a letter published in Harper’s and available on my blog. The commission process will drag on, statutes of limitation will run and the conclusion of the commission is likely to be: the US should not have tortured, but it was an extraordinary and dangerous moment after 9/11 and the torturers were acting in our best interest to avoid another 9/11. Prosecutions are not recommended.

I don’t think I need to repeat here why we need prosecutions. If we are to stop torture in the future we need to send the clear message that if an official tortures, prosecutions will follow. Without that message the next President or even this one, can again put us on the page of torture by signing another executive order. And don’t think that won’t happen no matter how many commissions reach results saying the US should not have tortured. It will and Cheney, Hayden and other have said so.

It is time to do what is necessary. Appoint a special prosecutor and insure that this country will not again be a country of torture.

 (These are the my personal views and not necessarily of any institution)

Today, the Obama administration set forth the authority under which it claims it can continue to hold those at Guantanamo without giving them a trial. If any of us thought or hoped or prayed that Obama would reject the detention without trial scenario authored by Bush, we were sorely disappointed. Yes, the term enemy combatant is gone to be replaced by “members of enemy forces.”  And who are they? Well just go back to the Bush administration definition of “enemy combatant” with one small change—the word “substantially” in front of support. So, it is roughly the same except now the Obama administration says they will not detain the little old lady in Switzerland who unwittingly gives money to Al Qaeda or the Taliban.   

 Again, as with Bush the Obama administration is applying the laws of international armed conflict (the laws of war) to the Taliban, Al Qaeda and associated forces when those laws have no application to those entities in the current situation.  Again as the Bushies did they are conflating the right to use force against terrorists with a claim that they can be held forever without trial. The laws of war contain no such authority.  Again, they are claiming the right to capture and detain people anywhere in the world—the world is still a battlefield according to Obama. So, the “global war on terror” continues.

Here is the “new” definiton of detainees who are no longer called “enemy combatants.”  Guess what–as I said above:  its roughly the same.

The President has the authority to detain persons that the President determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly supported hostilities, in
aid of such enemy armed forces.

This is a response to Scott Horton’s December Harpers Piece “Justice After Bush, Prosecuting an Outlaw Administration.” Horton concludes that a Commission of Inquiry or Truth Commission is the right approach.  I think he is wrong and that he and others ought to be demanding a criminal investigation and prosecution of the Torture Conspirators. My conclusion has been recently bolstered by Cheney’s confession of his involvement in approving waterboarding and his boast that he would do it again. In these circumstances, it is obvious that prosecution is necessary to deter torture in the future. To do otherwise is to grant impunity.  The letter, parts of which will appear in Harpers, is set forth below.

********

The December Harper’s Cover promises a lot:  Bush, Cheney and Rumsfeld are behind bars. Prominently displayed under the prisoners is the title of Scott Horton’s article “Justice After Bush, Prosecuting an Outlaw Administration.”   I was excited.  I thought I was about to read the case for prosecuting high level administration officials for the torture program. 

Alas, it was not to be.  Prosecutions are given only lip service while the bulk of the article argues for a truth commission/commission of inquiry. A commission will not do what is necessary to end torture now and in the future: make it clear, just as we do in cases with the most minor offenses, that actions have consequences.   A failure to initiate a criminal investigation of the torture program will only encourage future law breaking by sending a message of impunity. The message that we need to send is that the torture conspirators will be held accountable. That is the only way to fulfill Obama’s promise:  “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

What is surprising in Horton’s article is the disconnect between the first half which is one of the strongest pieces I have read about the lawlessness of the Bush administration and the latter half where he sets up a complex and unworkable commission. The articles opening paragraphs scream out the necessity for prosecutions.  Horton states that no other administration has been “so systematically or brazenly lawless;” that torture is the crime that “calls most clearly calls for prosecution;” and that it is the “most likely to be successfully prosecuted.” In one of his most important observations Horton states that the administration “waged war against the law itself,” and that the ruler claimed that it “was the law.”  This recognition is critical. It means that no matter how many executive orders and new prohibitions on torture are enacted, a future administration can reassert Bush’s claim that the President is above the law. The prohibitions will be for naught as will the conclusions of a commission. This is a key reason why the deterrence that results from prosecutions is necessary. Never again should we have an executive who claims to be above the law. 

Horton’s conclusions regarding the criminality of this administration are well documented in administration memos, FOIA documents, congressional hearings, the testimony of victims, and book after book. Recently, a bipartisan report of the Senate Armed Services Committee concluded that Rumsfeld and other high administration officials were directly responsible for the abuse of detainees. The key torture conspirators are well known: Bush, Cheney, Tenet, Rumsfeld, other members of the National Security Council’s Principals Committee and the lawyers who constituted the War Council: Addington, Gonzales, Yoo, Haynes.  As Major Gen. Antonio M. Taguba, who investigated the Abu Gharib scandal for the Pentagon declared:  “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Why then after running through various possibilities for accountability does Horton land on a commission as the best method for investigating and deterring lawlessness in the future?  He says it is “clear” this is the best option “given the political situation in the United States.”  In other words, it is a choice based upon political efficacy not on the best way to hold the torture conspirators accountable and prevent torture in the future.  Horton admits that a commission cannot provide “justice.”  However, to be fair, he does say that it might be a two step process of a commission first and then a special prosecutor—although he barely discusses this second step.

This is the wrong way to go about ending torture.  If the appointment of a special prosecutor is what is required then that is what we must demand. The political situation is not static. We should not be tailoring what we think is right to what Obama or his advisors currently may have in mind. Their positions can shift, but will not unless we make our voices heard. Had Horton and the others who have been writing and speaking on this subject called first and loudly for a special prosecutor we would be closer to that goal. That goal is not futile. When the Armed Services Committee issued its report, Senator Levin called for holding the abusers responsible: “But I would hope that the new administration, as well as the Defense Department…would look for ways, where appropriate, to  hold people accountable. It is time for a lot of those focusing primarily on commissions to catch up with Senator Levin. This is also a lesson for all of us going forward in dealing with the Obama administration on other issues. We should not be negotiating with ourselves. We must insist on what is principled and necessary.

(The question of domestic prosecutions could be a moot point if the President gives a generic pardon to unnamed officials who may have violated the law including himself. The pardon’s validity can be challenged on various grounds e.g. international law forbids pardoning war crimes and torture. If we lost the challenge, a commission would be the only alternative in the U.S. However, pardons are not valid internationally. The fact that there could no longer be prosecutions in the U.S. would make prosecutions in Europe all the more likely.)

One question to ask is whether the commission model is even appropriate. This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor to determine whether crimes were committed.

An examination of Horton’s proposal for a commission demonstrates that it is unworkable, unlikely to lead to accountability and will not lead to prosecution of the torture conspirators. He builds a complex super structure that begins with the appointment of party affiliated co-chairs. That is the beginning of the end. The Republicans are unlikely to go after key people in their own party and sadly many Democrats knew about and failed to stand up against the torture program.  These co-chairs along with the balance of the commissioners will be chosen, as was the 9/11 commission, by the speaker of the House, the Senate majority leader and minority leaders in both houses.  How is this ever going to work? Nancy Pelosi, the speaker, was briefed on CIA water boarding and secret sites. At the time she failed to object. Horton seems to understand this problem and suggests a qualifications commission that would recommend candidates to Pelosi et al. Nowhere does he say how that commission would be chosen and, of course, under his scheme there is no way to free it from the taint of protecting the torturers.  

Among many other problems, one other is striking. Horton acknowledges that subpoena power is necessary to gather the information for the commission’s report and says obtaining that power is a complex one. He never mentions the Fifth Amendment’s protection against self-incrimination. That could stop any testimony by the key conspirators. Granting immunity for that testimony, assuming the commission could ever do that, which is dubious, would be granting impunity. (Although not related to a commission vs. criminal prosecutions, Horton limits the commission to the treatment of detainees connected to the Authorization to Use Military Force Against Terrorists. That is too narrow and would exclude torture carried out in Iraq under a different war authorization.)

I can probably write the conclusion of a commission as suggested by Horton, although I would hope I am wrong. The paragraph below will give a flavor of what we can expect (with of course some recommendations tossed in e.g. Office of Legal Counsel should be protected from political pressure):

“We must look at the decisions of administration officials in the context in which they were made. The attacks of 9/11 were unprecedented. There was fear throughout the country; fear of the next attack, fear of sleeper cells and fear of anthrax and its potential to kill millions.  The administration acting with the best of intentions and in good faith did all in their power to insure the safety of America. At times, because of the nature of the threat, they did not adhere fully to prohibitions embodied in law.  This was unfortunate. However, there was never any intent to violate the law. While this sad episode should not be repeated we do not believe the actions of officials warrant criminal prosecution.”

A commission does have some positive aspects including an investigation and public airing of how the torture program was planned and carried out. However, much of this will be repetitious of what has already been revealed especially by the bipartisan Senate Armed Services Committee.  It is true that the Senate committee did not cover the entire program. For example, because of refusals by the CIA, it was unable to examine the heinous torture program at secret sites. That is important to do. However, if a bipartisan senate committee with subpoena power could not do it, no commission will. In general, a commission will be limited by classified material and the refusal of the key officials to testify.  There can be fewer such excuses in a criminal investigation. A trial also has a public education function and one that is far more dramatic and important than will occur at a commission. Just imagine if there had been no Nuremberg trials, but only commissions. Nuremberg is important because it served justice and memory. It drew a clear, bright line that sent a warning to officials in the future. That is what we need today

One of Barack Obama’s first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.

At Obama’s press conference on Dec. 1, he spoke of upholding America’s highest values as he introduced Eric Holder as his choice for attorney general. Holder insisted there was no tension between protecting the people of the United States and adhering to our Constitution.

A few months ago, Holder was even more explicit. “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution,” he said. “We owe t he American people a reckoning.”

The day of reckoning is fast upon us.

If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.

Read the words of Lt. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon. “There is no longer any doubt as to whether the current administration has committed war crimes,” he concluded. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Despite Taguba’s words and reams of documentation supporting his statement, there has been little discussion about holding officials accountable for their design and implementation of the torture program.

We need to make it clear, just as we do in cases with the most minor offenses, that actions have consequences. To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.

A popular refrain in Washington these days is that criminal prosecutions would be an unnecessary look backward. Some argue that in order for the new administration to move forward, presidential pardons should be granted and a Truth Commission assembled to investigate the circumstances that gave rise to the brutal interrogations and deaths of prisoners in Afghanistan, Iraq, Guantanamo Bay and CIA black sites around the world.

But pardons would be the final refuge for an administration whose egregious violations of human rights have, for all too long, gone unpunished. And a Truth Commission is not applicable.

This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.

Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America’s leadership and our new era of accountability.

Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards.

In his first nationally televised interview, President-elect Barack Obama made this promise: “I have said repeatedly that America doesn’t torture. And I’m going to make sure that we don’t torture.”

The best way to do that is to prosecute those who designed the torture policies.

Copyright 2008 The Progressive Magazine

Michael Ratner is president of the Center for Constitutional Rights and author of “The Trial of Donald Rumsfeld: A Prosecution by Book.”

http://www.commondreams.org/view/2008/12/04-8

Comment

By Michael Ratner & Jules Lobel

President-elect Obama should be applauded for reiterating his promise to close the prison camp at Guantánamo. It has been a national embarrassment and a symbol of everything the Bush administration has done wrong in the “war on terror”: detention without charges or trial, torture, and the establishment of military commissions in which handpicked military judges, not civil courts, try people on the basis of coerced evidence and hearsay. Shutting it down is important. However, we do not know what will be done with the 255 prisoners still detained there. Most of them will probably be sent back to their home countries, or else given asylum if it seems likely that repatriation will result in torture.

But what of others whom the Bush administration asserts cannot be released? And what will be the fate of any new detainees under the Obama administration? These questions should be answered as they have been for 200 years in this country: if there is sufficient evidence, charge them with crimes and have trials in federal courts; if not, release them. Not much will have been accomplished if Guantánamo is shuttered while the practices that underlie it continue. Yet this is being suggested by some who may have Obama’s ear. They argue that holding some terror suspects without trial or charges is necessary. A National Security Court composed of specially appointed judges without juries, using watered-down, minimal due process, would make the decisions.

Suggestions to repackage Guantánamo with a legal gloss must be rejected. Congress would in effect be legitimizing the long-term, perhaps lifelong, detention of people without charging or trying them in federal courts. It would be correctly perceived by the world as a continuation of Guantánamo, would undermine Obama’s pledge to restore our moral standing and would weaken the foundation of one of our most precious civil liberties.

There is no evidence that holding people without charge and trial is necessary. Proponents of preventive detention claim that regular criminal trials cannot work, because the evidence is classified and may have been procured by torture. But classified information is dealt with in federal terrorism trials all the time, through the Classified Information Procedures Act. And evidence procured by torture is inherently unreliable and should never be used in any trial, in any court. A recent Human Rights First study by two former federal prosecutors of more than 120 terrorism trials found that the courts capably handled these cases without compromising national security or sacrificing due process. That conclusion is echoed by judges who have presided over terrorism trials, such as Judge John Coughenour, who concluded that the regular criminal courts are “an adequate venue for trying suspected terrorists” and that it would be “a grave error” to create “a parallel system of terrorism courts unmoored from the values that have served us so well for so long.”

While the supposed advantages of a preventive detention scheme supervised by a special court using specially created rules are conjectural, the dangers of such a scheme are all too real. In the 1970s Britain established special “Diplock Courts” and administrative bodies to preventively detain and try Irish Republican Army suspects; the courts are now recognized as misguided efforts that undermined the liberty and fundamental rights not only of IRA suspects but of the British people themselves.

Shutting down Guantánamo is long overdue. We should not re-create it under another name.

http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=672

Webcast — On War Crimes and Torture: Should High Government Officials Be Investigated and Prosecuted?

When I awoke this morning I saw the New York Times headline: “Post-Guantanamo: A New Detention Law?” (Nov. 15, 2008)   I was afraid to read the article for I knew what was coming:  some on the Obama team supported by a few liberals were considering a preventive detention law. I had feared this moment for a long time and now here it was.  If you don’t know what preventive detention is just think about Guantanamo: its prisoners are held without charges and without trials.  They are jailed because of their alleged associations or alleged dangerousness.  We have spent long enough, almost seven years, trying to close down Guantanamo, end its unauthorized preventive detention scheme and repatriate its detainees.  Making permanent the disastrous preventive scheme that is Guantanamo, is akin to throwing gasoline on a fire that I hoped was almost extinguished. We must not let it happen.

A preventive detention scheme  would be a disaster for our country. It would send a message to the world that although Guantanamo will be closed, the practices that underlay it will continue.  Elisa Massimino, the executive director of Human Rights First got it right in the NYT:

“Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now.”

Benjamin Wittes at the Brookings Institution got it dead wrong with his fear of “people being released in the name of human rights and doing terrible things.”   People would not be released in the name of human rights; they would be released because a trial process that has stood us well for over 200 years, found them not guilty. That process is not just about protecting the rights of the accused which is crucial, but is about insuring that we convict the right people not the wrong people, while those who may have committed crimes go free.

Wittes goes on in the NYT article to argue that Americans had to cross a “psychological Rubicon” and accept preventive detention.  That statement, without his realizing it, tells it all. Recall that the Rubicon was the river over which Roman legions were not to cross; they were forbidden in the Republic.  Caesar crossed the Rubicon with his legions and the Roman Republic quickly came to its end.  What Wittes and others fail to recognize is that a preventive detention law is a debasement of fundamental democratic principles and puts us on the path to a police state.

We are seeing preventive detention surface in part because of Obama’s promise to close Guantanamo.  While almost all of the 255 remaining there can be repatriatedor otherwise released to a safe country, the Bush administration claims that a few of them need to be brought to trial.  Obama has promised that these trials will not be the kangaroo military commissions set up and employed by Bush.

Alongside the claims that Guantanamo will be closed in a new administration, and that the sham military commissions will cease, have come proposals that Guantanamo’s closure will require a radical reworking of our justice system in order to ensure that those who the government asserts need to be imprisoned will continue to be held.  Frankly, this is the same assertion that in 2002 created Guantanamo for the alleged “worst of the worst,” without charge or process. 

In 2008, with Guantanamo still evident as one of the most egregious symbols of the excesses of the Bush administration, the new claim is that preventive detention is necessary because in federal trials, prosecutors may not be able to get convictions because their evidence is classified or gained through torture.  There is no reason to believe what the government says on this question.  After seven years of government exaggerations about the men imprisoned at Guantanamo – only 25 [check number] of 775 are facing any charges, and over 500 have already been released without charge, trial or any process at all –it is safer to assume the government is again exaggerating the problems of federal trials to get what they want: a preventive detention law. Indeed, classified information is dealt with in federal terrorism trials all the time. There is a federal statute, the Classified Information Procedures Act, setting up a process for doing so and it has been used in scores, of terrorism trials. That issue is a red herring, and far too much is at stake to fall for it.

As to evidence from torture or coercion, it should not and cannot be used in any fair trial. This means that a prosecutor will need to present independent evidence. Considering that some people have made statements prior to capture and the government’ resources, this should not present insurmountable problems. If there is no such independent evidence, then there is no justification for the indefinite imprisonment in a preventive detention regime based solely on statements made from torture. This is not a reliable basis for imprisonment, and our society is above that.

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.  The decision must be to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.  There is no middle ground.