[disinformation ed.’s note: The Washington Post reports that “Obama administration officials are drafting an executive order that would set up a review process for detainees held indefinitely at the military prison at Guantanamo Bay, Cuba.” In a region where both American and Cuban law ceases to exist, does this order follow the procedures set forth in President Obama’s May 2009 speech about detainees who would be held indefinitely at that military prison? With that in mind, we thought we’d remind our readers of Russ Kick’s “12 Arguments Against the Police State at Guantanamo Bay” in his Book of Lists: Subversive Facts and Hidden Information in Rapid-Fire Format (2004)]:
The 660 or so people being held at the naval base in Guantanamo Bay, Cuba, have never been tried or even charged with crimes. They can be held for the rest of their lives at the whim of the government, and the military has floated the possibility of executing some of them. In an effort to remedy this disgraceful destruction of rights and the law, the Center for Constitutional Rights filed a petition seeking habeas corpus, which would force the government to Constitutionally process the prisoners (i.e., quick and speedy trials, jury of peers, right to confront accusers, etc.).
A district court refused, buying the feds’ ridiculous argument that because the US military base is located on the island of Cuba, it isn’t subject to US law, though it also is most definitely not subject to Cuban law. Following this line of argument, no law applies there, making it an autonomous zone, as devised by Hakim Bey, or an interzone, from the works of William Burroughs. I’m sure that the men and women stationed at Guantanamo Bay would be surprised to know that they can apparently steal, rape, and kill with impunity. Go ahead, snort coke off your commanding officer’s desk. It’s all right, because US law doesn’t apply.
Seriously, it’s hard to see how any court bought such a transparently stupid, self-serving argument. The Center for Constitutional Rights has appealed this boneheaded decision to the Supreme Court, which triggered a flood of amicus curiae (friend of the court) briefs from some powerful individuals and groups who used the chance to lambaste the concentration camp 90 miles off the coast of Florida.
1. Former US Diplomats
Who: 23 former US diplomats, many of whom also served as Assistant Secretaries of State or in other high-level positions.
Excerpts: “This undermines what has long been one of our proudest diplomatic advantages—the nation’s Constitutional guaranty, enforced by an independent judiciary, against arbitrary government.”
“The world has taken due note of the fact that the United States has incarcerated these petitioners in Guantanamo and that there has been no effort to charge, try or judge them under law. This has generated international concern. The Inter-American Commission on Human Rights has undertaken precautionary measures. The UN High Commissioner for Human Rights has spoken out. The International Committee of the Red Cross has gone on record. The British Court of Appeal in the Abbasi case has expressed its displeasure. The Human Rights Chamber of Bosnia-Herzegovina, a court that the United States helped create, has issued its own protest. And Shirin Ebadi, the recipient of the most recent Nobel Peace Prize, referred specifically to Guantanamo in her acceptance remarks as an affront to universal human rights.
“Citizens of foreign countries cannot assume that what happened to the Guantanamo prisoners cannot happen to them. It will not be evident why, if the Executive Branch can detain prisoners in Guantanamo free of judicial inquiry, it cannot expand the practice to establish a global criminal justice system with other prison camps like Guantanamo, similarly subject to no legal oversight and in which any foreigner deemed a danger by some official might be detained indefinitely. Nor will it be evident why such a practice could not reach out to persons within the United States or even to American citizens.”
2. Former US Government Officials
Who: “[F]ormer US government officials who have exercised legal responsibility over matters concerning the US Naval Base at Guantanamo, the Panama Canal, or other US bases on foreign soil and those whose responsibilities substantially involved the scope of U.S. jurisdiction and activities abroad.”
Excerpts: “Although Guantanamo is unusual, it is not sui generis. History records at least three other examples of territory outside US territorial borders and sovereignty, but still under the complete jurisdiction and control of the United States: the Canal Zone, the Trust Territory of the Pacific Islands, and the former American sector in Berlin. In each of these instances, US courts have, by extrapolation from the Insular Cases, found fundamental constitutional rights to be applicable to citizens and aliens within these territories. As in Guantanamo, the United States for strategic reasons gained full powers of jurisdiction and control over these territories, without ever possessing actual sovereignty.”
“If the Government denies that foreign nationals have rights, then by confining them at Guantanamo, it is engaged not in legal detention, but in a lawless exercise of naked force.”
“The Due Process Clause [of the Fourth Amendment] is phrased in universal terms, protecting any ‘person’ rather than ‘citizens’ or members of ‘the people.’ Nor does its wording suggest limitations as to place.”
“Maintaining involuntary captives of the United States as rightless outlaws because of their captive status would revive the logic of slavery, a constitutional practice that this country has long abandoned.
“In any event, the Constitution undeniably protects involuntary subjects, such as children who may be too young to form voluntary connections.”
“If the Due Process Clause does not apply to detainees at Guantanamo, the Government would have effective discretion to starve them, to beat them, and to kill them, with or without hearings and with or without evidence of any wrongdoing.”
3. Former American POWs
Who: “Leslie H. Jackson, Edward Jackfert, and Neal Harrington, former American prisoners of war detained by the German and Japanese governments during World War II.”
Excerpt: “As these examples [occupied Germany, Vietnam, Grenada, Panama, Haiti, and the Persian Gulf] show, the use of tribunals traditionally has been an integral component of the United States’ treatment of persons captured on enemy soil. The Government’s current practice of imprisoning foreign citizens indefinitely without providing them with an individualized determination of their status represents a sharp break with this historical commitment. Allowing access to the courts is the only means for these detainees to achieve the narrow redress they seek— individualized determinations of their status as required by the Geneva Conventions and US military regulations.”
4. Retired US Military Officers
Who: “[T]hree retired military officers. Each one formerly served as the Judge Advocate General or the senior legal advisor for a branch of the United States military, and has extensive experience with US military regulations and the Laws of War.”
Excerpts: “The United States has also demanded application of the principles codified in the Geneva Conventions to captured US service personnel, even when they were taken prisoner under circumstances when the Conventions, technically, did not apply. For example, following the capture of US Warrant Officer Michael Durant by forces under the control of Somali warlord Mohamed Farah Aideed in 1993, the United States demanded assurances that Durant’s treatment would be consistent with thebroad protections afforded under the Conventions, even though, ‘[u]nder a strict interpretation of the Third Geneva Convention’s applicability, Durant’s captors would not be bound to follow the convention because they were not a ‘state.’”
“Invoking international human rights standards, the United States also has condemned foreign governments that have held detainees incommunicado, depriving them of the ability to seek judicial review of their confinements. The United States, for example, objected recently when the Liberian government arrested journalist Hassan Bility and held him incommunicado on the purported ground that he was an ‘illegal combatant’ involved in terrorist activity.”
“Yet even as American officials condemn other nations for detaining people indefinitely without access to a court or tribunal, authoritarian regimes elsewhere are pointing to US treatment of the Guantanamo prisoners as justification for such actions. Eritrea’s Ambassador to the United States defended his own government’s roundup of journalists by claiming that their detention without charge was consistent with the United States’ detention of material witnesses and aliens suspected by the United States of terrorist activities.”
5. Fred Korematsu
Who: “More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of President Franklin Roosevelt’s 1942 Executive Order that authorized the internment of all persons of Japanese ancestry on the West Coast of the United States. He was convicted and sent to prison. In Korematsu v. United States, this Court upheld his conviction, explaining that because the United States was at war, the government could constitutionally intern Mr. Korematsu, without a hearing, and without any adjudicative determination that he had done anything wrong.”
Excerpts: “Although certain aspects of the ‘war against terrorism’ may be unprecedened, the challenges to constitutional liberties these cases present are similar to those the nation has encountered throughout its history. The extreme nature of the Government’s position here is all too familiar as well. When viewed in its historical context, the Government’s position is part of a pattern whereby the executive branch curtails civil liberties much more than necessary during wartime and seeks to insulate the basis for its actions from any judicial scrutiny.”
“In Youngstown Sheet & Tube Co. v. Sawyer, this Court invalidated President Truman’s nationalization of the steel mills during the Korean Conflict, despite the Commander-in-Chief’s insistence that his actions were necessary to maintain production of essential war material. During the Vietnam War, this Court rejected a Government request to enjoin publication of the Pentagon Papers, refusing to defer to executive branch claims that publication of this top-secret document would endanger our troops in the field and undermine ongoing military operations. New York Times Co. v. United States.”
“During World War I, John Lord O’Brian served as Special Assistant Attorney General in charge of the War Emergency Division of the Department of Justice. In this capacity, he played a central role in enforcing the Espionage Act of 1917. Four decades later, reflecting on his own experience, O’Brian cautioned against the ‘emotional excitement engendered…during a war,’ and warned that ‘the greatest danger to our institutions’ may rest, not in the threat of subversion, but ‘in our own weaknesses in yielding’ to wartime anxiety and our ‘readiness to…disregard the fundamental rights of the individual.’ He expressed the hope that ‘our judges will in the end establish principles reaffirming’ our nation’s commitment to civil liberties.
“As Chief Justice Rehnquist has written, ‘[i]t is all too easy to slide from a case of genuine military necessity…to one where the threat is not critical and the power [sought to be exercised is] either dubious or nonexistent.’ It is, he added, ‘both desirable and likely that more careful attention will be paid by the courts to the…government’s claims of necessity as a basis for curtailing civil liberty.’”
6. UK Members of Parliament
Who: “175 Members of both Houses of the United Kingdom of Great Britain and Northern Ireland.”
Excerpt: “There is no mechanism in place or being followed to ensure that the circumstances of these detentions meet even the most basic standards of due process or human rights. The rule of law requires reasonable due process to ascertain the bases asserted in support of prolonged detention as well as the veracity of the facts that suppor t those bases. Indefinite detention without charge represents a violent departure from principles underlying our common legal heritage.
“The detention center at Guantanamo was designed, according to the US Administration, to house ‘the worst of the worst’ and ‘hardest of the hardcore.’ Yet, other statements by the administration suggest that Guantanamo holds no high ranking terrorist of any significance.”
7. International Law and Jurisdiction Professors
Who: Four law professors from the US. “All are academic international law experts who have devoted significant attention to the jurisdictional aspects of national and international law in areas such as international criminal law, international economic law, and human rights. Professors Barton and Carter are members of the bar of this Court.”
Excerpts: “The prisoners held at the United States Naval Base at Guantanamo are not the only persons who will be affected by the Court’s jurisdictional decision in this case. In the aftermath of September 11, 2001, it appears possible that the United States executive will establish its own special criminal court process, seeking to avoid the use of Article III judges and to use instead an executive form of review rather than an independent judicial review, such as that provided by this Court, Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. This new process may be applied far beyond those captured in connection with the Afghanistan or Iraq actions, for the war on terrorism is likely to last indefinitely.”
“Moreover, precedents set in this terrorism conflict may end up being applied as well to international narcotics or money-laundering offenses.”
8. Legal Historians
Who: A group of two-dozen legal historians from Harvard, Boston College, Columbia, Oxford, Stanford, Yale, Amherst, Princeton, Georgetown, and other universities.
Excerpt: “In sum, the historical evidence is not consistent with the government’s claim that the writ of habeas corpus guaranteed by the Constitution is unavailable to test even the classification as ‘alien enemies’ of those detained at Guantánamo. Guantánamo lies a mere 90 miles from the United States and has been subject to the exclusive control and jurisdiction of the United States for the past century. No other law but US law operates there. The historical evidence suggests instead that the denial of all habeas corpus review in such a situation would contravene the fundamental principles that have governed the availability and operation of the Great Writ since well before the United States Constitution was adopted.”
9. Bipartisan Coalition of National and International Non-Governmental Organizations
Who: Amnesty International, Human Rights Watch, American Civil Liberties Union, Anti-Defamation League, Lawyers Committee for Human Rights, Association of the Bar of the City of New York, National Association of Social Workers (Legal Defense Fund), People For the American Way Foundation, National Council of the Churches of Christ in the USA, and seven other legal and religious groups.
Excerpts: “Were the Due Process Clause inapplicable to US actions in Guantanamo Bay, then the Constitution would allow the summary execution or torture of prisoners detained there. Indeed, the government has conceded this in open court. See Gherebi v. Bush, 2003. (‘[A]t oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantanamo, the US government has never before asserted such a grave and startling proposition.’)”
“The US Department of Defense has asserted that the Guantanamo prisoners, nearly all of whose identities have not been officially disclosed, are ‘battlefield’ detainees who were engaged in combat when arrested. But in addition to Petitioners’ claims of non-combatancy,it is clear that some detainees were apprehended far from battlefields. For instance, Guantanamo holds six Bosnians and Algerians who were arrested by Bosnian police in Bosnia and then handed over to US troops at the request of the United States. They were quickly transported to Guantanamo, despite a Bosnian court order that four of the men remain in Bosnia for further proceedings.”
10. International Commission of Jurists
Who: “The ICJ is comprised of 60 jurists [judges, prosecutors, and attorneys] of high standing in their own country or at the international level.”
Excerpts: “If the Court’s interpretation of Johnson v. Eisentrager were correct, US officials could arrest foreign nationals and, by the simple device of transferring such prisoners to a place of detention outside the sovereign territory of the United States, defeat the jurisdiction of the United States Courts to review the legality of their detention. The US Executive could arbitrarily hold such individuals in detention with no accountability to any court of law.”
“There are already disturbing signs that other nations have begun to use the example of the United States to justify arbitrary detention of their citizens. For example, Malaysia’s Law Minister has justified the detention of militants without trial stating that its practice was ‘just like the process at Guantanamo Bay.’ The minister further indicated that he ‘put the equation with Guantanamo Bay just to make it graphic to you that this is not simply a Malaysian style of doing things.’”
11. Human Rights Institute of the International Bar Association
Who: “The Human Rights Institute of the International Bar Association (the ‘Institute’) is an international body headquartered in London, England, that helps promote, protect and enforce human rights under a just rule of law, and works to preserve the independence of the judiciary and legal profession worldwide. Founded in 1995 under the Honorary Presidency of Nelson Mandela, the Institute now has more than 7,000 members worldwide.”
Excerpt: “Even where the presumption of prisoner of war status is displaced, the [Geneva] Conventions afford due process protection to all detainees, ensuring that they are not held without justification and that any prosecution brought against them accords with fundamental justice. Combatants who are not members of any armed forces or volunteer corps belonging to a party to a conflict have been described as ‘unlawful combatants,’ although no such status is recognized in the Geneva Conventions. If they are not members of the armed forces, they fall within the scope of the Civilian Convention. Accordingly, while unlawful combatants (unlike prisoners of war) may be prosecuted for taking part in the conflict and for any crimes committed in that regard, they are entitled to the judicial guarantees set out within the Civilian Convention should they be prosecuted for their actions.”
12. National Institute of Military Justice
Who: “[A] District of Columbia nonprofit corporation organized in 1991 to advance the fair administration of military justice and to foster improved public understanding of the military justice system.”
Excerpts: “A well-developed body of law regarding individuals seized during hostilities has been enforced regularly by impartial tribunals in past conflicts, and is being applied today by United States armed forces in combat. The application of the rule of law to individuals seized during hostilities is not inconsistent with the Executive Branch’s exercise of its war powers, either in theory or in the practice of the United States over the past fifty years. Nor is there anything novel about issuing a writ of habeas corpus on the application of an individual confined by the military at Guantanamo Bay, something the highest court of the military did in Burtt v. Schick, 23 M.J. 140 (1986).”
“Domestic law and practice thus make it clear that Guantanamo Bay has never been regarded by the United States as a ‘law-free’ zone. United States courts exercise criminal jurisdiction over both citizens and aliens at Guantanamo Bay. In connection with the detainees currently interned at Guantanamo Bay, the United States has already asserted jurisdiction over an Army chaplain, two translators, and an intelligence officer. Judicial resolution of charges against those individuals has not troubled the Government, which is according rights to everyone except the detainees themselves.
“While the Government devotes much attention to the supposed unavailability of habeas corpus in Guantanamo Bay, no such jurisdictional difficulty was found by the court with responsibility for the military justice system. In Burtt v. Schick, a Navy enlisted man confined at Guantanamo Bay sought a writ of habeas corpus after the prosecution had obtained a mistrial over his objection. Holding that the mistrial had been obtained without either ‘manifest necessity,’ or the consent of the accused, the Court of Military Appeals unanimously granted the writ against the officer-in-charge of the Guantanamo Bay brig. In doing so, it found no obstacle to asserting habeas corpus jurisdiction over individuals at Guantanamo Bay.”
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