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.

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 gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.”

Let there be no doubt that we have been a country of torture and cruel treatment. The Bush administration ran a worldwide kidnapping, detention and torture program. The Bush administration tortured and abused prisoners in Guantanamo, Iraq, Afghanistan, Secret Sites and rendered prisoners to other counties for torture.

We know this from the thousands of pages of official documents, testimony and books that lay out what I call the torture program or torture conspiracy. 

We know this from the many survivors of this cruel torture and abuse program.

These are people we at CCR represent: at Guantanamo, in Iraq, from

Afghanistan and those who have escaped secret sites and rendition.

We know the names of many of the perpetrators—current and former officials of the government.

Here are the names of a few of them:

Members of the Principals Committee: Cheney, Rumsfeld, Tenet,

Powell, Ashcroft, Rice and of course Bush–

Members of the War Council made up of their lawyers: Gonzales and Flannigan, Addington, Haynes and Yoo.

We know there were crimes committed. Many crimes.

Torture is prohibited by the Convention Against Torture: absolutely banned.  There are no exceptions.

Torture, cruel, humiliating and degrading treatment are prohibited by the Geneva Conventions.  Again there are no exceptions. Military necessity is not an exception.

These prohibitions have been enacted into our criminal law:

The anti-torture statute (18 USC sec.2340) and the war crimes statute (18 USC sec.2441)

The torture conspirators knew this. They knew their conduct violated these statutes. They went ahead anyway.

But they were nervous. What if as Gonzales said, sometimes in the future a prosecutor wanted to go after them?

So they had to manufacture defenses: Assert that the President was above the law and could do no wrong.  Argue that torture was not torture. Claim that torture could be used in self-defense.  Assert that the Geneva Conventions were inapplicable.  And finally push through Congress a retroactive narrow redefinition of war crimes they hoped would protect them.

These defenses will do them little or no good.  But that I hope will be a question for a court and a jury in this country. 

One thing I can promise you—if this country fails to act, other countries will. These so called defenses and even pardons will be completely irrelevant in prosecutions for the international crimes of torture and war crimes.

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The question is what should be done beyond the obvious.

New executive orders; repeal of old orders and memos; declassification of what we don’t know; that will help with ending the torture program now and giving us more knowledge.

But that will not be sufficient to, as Obama has pledged, “make sure we don’t torture.”  The Obama administration may not; but what about the administration after that and into the future.

And what about other countries who have looked to the United States as an example:  The US tortured and committed war crimes: so can we.

The torture program was an assault on the prohibition against torture and war crimes—But it was also and importantly an assault on law itself.  

Or as Scott Horton said in a recent Harpers article said: the administration waged war against the law itself. 

If laws can be broken with impunity today, they can and will be broken with impunity tomorrow.  Not just laws against torture and  war crimes, but any and all laws; any and all limits on government.    

 That is not remedied by only changing executive orders and laws going forward.

            I am not convinced a Yoo/Addington proof law can be drafted

Insuring that this never happens again and that limits on government are just that:  limits, is why criminal investigation and prosecution is necessary.

Sadly some anonymous Obama team members and Democrats in congress are reluctant to take this step. Some claim it is looking backwards. It is not.  Investigations and prosecutions are our insurance that limits on govt. will be adhered to in the future.

Investigation and prosecution send the warning to the future:

 Don’t commit those acts again. You will be prosecuted.

As Jane Mayer said in her book “the dark side”

 This was the First time in  history the United States sanctioned govt. officials to physically and psychologically torment US captives—making torture the official law of the land”

Let’s make sure it’s the last time in history by bringing the torture conspirators to justice. 

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.

Lines are huge!  Obama will win.   It is historic.   A black family in the white house that slaves built.  Yes, slaves were used in the construction of the White House. When I was a child this never could have  happened. In the 50’s when I visited Florida, even after Brown v. Board, there were separate drinking fountains and bathrooms for Blacks. When CCR was founded in the 60’s there were only three elected Black officials in the Black belt; today there are thousands. So we are seeing an amazing moment in American history. 

This is not to say our work is done. Obama is not a progressive. But he is certainly more liberal than Bush and McCain.  He will redistribute some of the vast wealth that has gone to rich in a county that has plundered its poor since Reagan in 1981. It will not be a social democracy, but it will better than what we had. The disastrous economic crisis is pushing him in this direction, but citizenry will need to keep up the pressure. 

Obama has been disappointing regarding the wars in Afghanistan and Iraq. These must be ended and time is now; the time to revive our anti-war movement is now. We cannot await what Obama might do: he has already told us about wanting to send more troops in Afghanistan. We must push him to end the current wars and eradicate the poison of aggressive war. 

Obama has promised to close Guantanamo and end torture. We must hold him to that promise.   He must close secret CIA sites and off shore prisons. He must end the kangaroo courts called military commissions. He must end the massive surveillance state America has become. 

Finally, he must appoint a special prosecutor to investigate the war crimes of the Bush administration: the aggressive war in Iraq, torture and warrantless wiretapping. In short he must bring America back into the world of civilized states where fundamental rights and the prohibition on aggressive war are not just slogans but guide U.S. actions.