Recently the New York Times published an Op-Ed by Jack L. Goldsmith and Neal Kaytal, two professors, calling for a special national security court to try alleged terrorists, a system which would legalize preventive detention in the United States. There was outrage by many civil libertarians and particularly by those of us who represent Guantanamo detainees. I think the establishment of such a system in the U.S. puts us well along the road to a police state. My published letter to the New York Times is set forth below.

New York Times July 16, 2007

A New Court for Terror Suspects?

To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

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.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
President
Center for Constitutional Rights
New York, July 11, 2007

July 4, 2007

“Power concedes nothing without a demand. It never did and it never will.”
Frederick Douglas

Whenever a July 4^th comes along I often think about the speech the freed slave Frederick Douglas gave on a July 5, 1852, eight years prior to the civil war. Titled “The Meaning of Fourth of July to the Negro” he tells his audience that “This Fourth of July is yours, not mine. You may rejoice, I must mourn.”

In words that could easily be echoed by Guantanamo detainees and others tortured and imprisoned in Afghanistan, Iraq and secret CIA sites, Douglas asks:

“What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sound of rejoicing are empty and heartless; your denunciation of tyrants brass fronted impudence; your shout of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.”

Guantanamo detainees would certainly ask, as did Douglas, about the real meaning of our shouts of liberty and equality on this July 4^th. What do they mean for those tortured and imprisoned at Guantanamo? The hypocrisy of our so-called liberty in the U.S is more revealed on this day then other days in the year.

In a few months it will have been almost six years of detention for those imprisoned at Guantanamo. It will have been almost six years of living under inhuman conditions and torture. Despite two Supreme Court victories not one detainee has had a day in court, not one detainee has been able to challenge his detention by means of a writ of habeas corpus. And not once, but twice, has Congress overridden the Supreme Court. In October of 2007 they did the unthinkable—stripped the writ of habeas corpus form the Guantánamo detainees and from any non-citizen, even permanent residents, who the President says are “enemy combatants.” The Supreme Court, after some hemming and hawing, has finally agreed to decide whether Congress could do that. But even if the detainees win, it will mean another year or more of detention without trial.

Imprisonment without trial, imprisonment without a day in court, characterizes police states—whether those of Pinochet’s Chile or Hitler’s Germany. It should be unheard of in a democracy or in state in which authority is under law and not the law. But sadly, it has gone on for almost 6 years.

Just recently, on July 3^rd I read a New York Times article entitled “Legislation Could Be Path to Closing Guantánamo.” While at some point because of the world wide outrage at Guantanamo, it may be forced closed, it will not be meaningful to close it if indefinite imprisonment without trial is continued at another detention facility. It will not be meaningful unless the writ of habeas corpus is restored. And it will not be meaningful unless those imprisoned are either released or +charged with crimes and tried. Apparently that is not the intention of the “legislation.” It is rather to put into law the outrages that Guantánamo represents. In that same article Defense Secretary Gates suggests the need to find a way to hold prisoners forever without a trial. Let us understand what the Bush administration, sadly with the Congressional consent (Republicans and more Democrats then one would imagine) has established: a massive preventive detention system, a concentration camp, that is flatly illegal—or should be under U.S. law and surely is under international law.

In that same article Professor Neal Kaytal suggests exploring the option of special national security courts with different standards of proof for trying terrorism suspects. Special trials for terrorist suspects invite serious violations of rights as we have seen with the Military Commissions at Guantánamo. Admission of hearsay, coerced evidence, secrecy and different standard of proof, undercut fundamental rights and may well lead to convictions of the wrong people. Trials should take place in regular courts; there is simply no reason for shortcut justice. Such special rules ultimately creep into regular criminal trials, as was the case in the United Kingdom when special trials were initiated for IRA suspects.

This July 4th is a time to renew our commitment to fundamental rights, not the time to erode protections of which we should all be proud. We all have an obligation to end the abomination that is Guantánamo and what it represents. Act now! Visit the CCR website: www.ccr-ny.org