Adonis Diaries

Archive for January 17th, 2012

Is indefinite detention Constitutional by any stretch of the imagination? Why detainees in Guantanamo prison camp not a priority  in Presidential campaign?  Is indefinite detention evil?  Like in the Guantanamo prison camp?

Shouldn’t Presidential contenders in the US give more priorities to the “Unconstitutional” activities done during the Bush reign and that are still going on with Obama?  Like indefinite detention in Guantanamo prison and the pursuing of drone attacks that are killing more civilians than the listed targeted “terrorists” in Pakistan, Afghanistan, Yemen, Somalia…?

This Wednesday will mark the ten-year anniversary of the opening of the US Guantanamo prison camp (located in Cuba).  In September 2006, the U.S. Congress passed the Military Commissions Act (MCA) which, among other things, not only authorized the detention of accused Terrorist suspects without a trial, but even explicitly denied all Guantanamo detainees the right of habeas corpus: the Constitutionally mandated procedure to allow prisoners, at least one opportunity to convince a court that they are being wrongfully held.

Habeas hearings are a much lower form of protection than a full trial: the government need not convince a jury beyond a reasonable doubt that someone is guilty, but rather merely present some credible evidence to justify the imprisonment. But the MCA denied even habeas rights to detainees.

Glenn Greenwald published this lengthy article “The evil of indefinite detention and those wanting to de-prioritize it”.  I  split this long article into two distinct posts, and this is on the indefinite detention case. Greenwald wrote (with slight editing and arrangement):

“Lakhdar Boumediene,  a camp’s former prisoner, sent an Op-Ed to the The New York Times.  Lakhdar recounts the gross injustice of his due-process-free detention, which lasted seven years. It was clear from the start that the accusations against this Bosnian citizen — who at the time of the 9/11 attack was the Red Crescent Society’s director of humanitarian aid for Bosnian children — were false.  Indeed, a high court in Bosnia investigated and cleared him of American charges of Terrorism. But U.S. forces nonetheless abducted him, tied him up, shipped him to Guantanamo, and kept him there for seven years with no trial.

Once the U.S. Supreme Court, in a 2008 decision bearing Boumediene’s name, ruled that this habeas-denying provision of the MCA was unconstitutional, and that Guantanamo detainees were entitled to habeas corpus review, was the U.S. government finally required to show its evidence against Boumediene in an actual court.

A Bush appointed federal judge ruled that there was no credible evidence to support the accusations against him, and he was finally released in May, 2009.

(1) Since the Supreme Court’s Boumediene decision, dozens of Guantanamo detainees like Boumediene were finally able to have a federal court review whether there was any credible evidence against them, and the vast majority have won their cases on the ground that there was no such evidence.  At one point, 75% of Guantanamo detainees prevailed, though the percentage is now somewhat lower. Had the Military Commissions Act been upheld as constitutional, Boumediene — and dozens of other innocent, now-released Guantanamo detainees — would undoubtedly still be indefinitely imprisoned.

If those who voted for the MCA had their way,  (including all GOP Senators except Lincoln Chafee along with 12 Democrats such as Jay Rockefeller, Debbie Stabenow, Robert Menendez, Frank Lautenberg, and current Interior Secretary Ken Salazar) Boumediene and dozens of other innocent detainees would still be wrongly imprisoned. The irony is that he Democrats had 46 Senators at the time and could have filibustered but did not.

Indeed, even many Democrats who voted against the bill anointed John McCain as their negotiator and were prepared to vote for the MCA until the very last weekend when some unrelated changes were made without their input and they were offended on that procedural ground. As Boumediene’s Op-Ed reflects, acting to empower the President to imprison people indefinitely with no charges is one of the most pernicious and dangerous steps a government can take, and yet the U.S. Congress in 2006 did exactly that.

(2) The Boumediene Supreme Court decision was a 5-4 vote; thus, four Justices of the U.S. Supreme Court voted to uphold the constitutionality of imprisoning human beings indefinitely, possibly for life, without even the minimal protections of a habeas hearing. Had Anthony Kennedy voted with his conservative colleagues, not only would Boumediene and dozens of others still be wrongly imprisoned, but the power which the U.S. has long taught its citizens is the defining hallmark of tyranny — the power to imprison without due process — would have been fully enshrined under American law.

(3) Post-Boumediene, indefinite detention remains a staple of Obama policy. The Obama DOJ has repeatedly argued that the Boumediene ruling should Not apply to Bagram (prison in Afghanistan), where — the Obama administration insists — it has the power to imprison people with no due process, not even a habeas hearing!

The Obama DOJ has succeeded in having that power enshrined. Obama has proposed a law to vest him with powers of “prolonged detention” to allow Terrorist suspects to be imprisoned with no trials. His plan for closing Guantanamo entailed the mere re-location of its indefinite detention system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with no trial.

The President just signed into law the NDAA which contains — as the ACLU put it — “a sweeping worldwide indefinite detention provision,” meaning — as Human Rights Watch interpret — that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.” Those held at Guantanamo will continue to receive at least a habeas hearing, but those held in other American War on Terror prisons will not.

(4) As we head into Election Year, there is an increasingly common, bizarre and self-evidently repellent tactic being employed by some Democratic partisans against those of us who insist that issues like indefinite detention (along with ongoing killing of civilians in the Muslim world) merit high priority. The argument is that to place emphasis on such issues is to harm President Obama (because he’s responsible for indefinite detention, substantial civilian deaths, and war-risking aggression) while helping competing candidates (such as Gary Johnson or Ron Paul) who vehemently oppose such policies.

So goes this reasoning, to demand that issues like indefinite detention andcivilian deaths be prioritized in assessing the presidential race is to subordinate the importance of other issues such as abortion, gay equality, and domestic civil rights enforcement on which Obama and the Democrats are better. Many of these commentators strongly imply, or now even outright state, that only white males are willing to argue for such a prioritization scheme because the de-prioritized issues do not affect them.

There are numerous glaring flaws with this divisive tactic. For one, it relies on a full-scale, deliberate distortion of the argument being made: Demanding that issues like indefinite detention, civilian deaths and aggressive war be given high priority in the presidential race does not remotely advocate the de-prioritization of any other issues. For another, many women and ethnic and racial minorities – as well as gay Americans — are making similar arguments about the need for these issues to receive substantial attention in the election.

More important, it’s irrational in the extreme to argue that self-interest or “privilege” would cause someone to want to prioritize issues like indefinite detention and civilian casualties given that the civil liberties and anti-war advocates being so accused are extremely unlikely themselves to be affected by the abuses they protest.

It isn’t white males being indefinitely detained, rendered, and having their houses and cars exploded with drones — the victims of those policies are people like Boumediene, or Gulet Mohamed, or Jose Padilla, or Awal Gul, or Sami al-Haj, or Binyam Mohamed, or Afghan villagers, or Pakistani families, or Yemeni teenagers.

When you spend the vast bulk of your time working against the injustices imposed almost exclusively on minorities and the marginalized — as anyone who works on these war and civil liberties issues by definition does — it’s reprehensible for someone to deploy these sorts of accusatory tactics, all in service of the shallow goal of partisan loyalty enforcement. Those who were actually driven primarily by privileged self-interest would want to de-prioritize these issues in a presidential campaign, not insist on their vital importance.

And that is this real point here: what’s so warped about those who employ this tactic for partisan ends is how easily it could be used against them, rather than by them. All of the authors of the three accusatory examples linked above (Carpentier, Pollitt, and Matthews) — as well as most of those Democrats who have now sunk to explicitly arguing that such matters are unimportant — are white and non-Muslim. To apply their degraded rhetoric to them, one could easily say:

Of course they don’t consider indefinite detention, invasions and occupations, and civilian slaughter to be disqualifying in a President or even meriting substantial attention in the presidential election — of course they will demand that everyone faithfully support a President who continues to do these things aggressively — because, as non-Muslims, they’re not the ones who will be imprisoned for years with no trial or have their children blown to bits by a U.S. drone or air strike, so what do they care?

I don’t employ or endorse that wretched reasoning, but those who do — such as the authors of the above-linked accusations — should have it applied to them and their own political priorities; they deserve to reap what they are sowing.

Note: The NYT has published an Op-Ed from another released, innocent Guantanamo detainee, Murat Kurnaz, that is just as harrowing and moving. It isn’t the people who are demanding these injustices receive high priority who have to answer charges of race-and-privilege-based self-interest and indifference; if anyone should answer those scurrilous charges, it’s those insisting that these abuses are not disqualifying and can and should be de-prioritized in the 2012 election.


adonis49

adonis49

adonis49

January 2012
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