No Justice Forever - America's New Foreign Policy of Indefinite Detention
As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the U.S. government is seriously considering indefinite detentions for some Guantanamo detainees.
Senator Lindsey Graham said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released but too difficult to prosecute even in the conviction-friendly Commission System.
These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a "tough on terrorism" stance, the United States has failed to live up to these values.
One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.
It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.
If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.
I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to the Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer "I have no justice today." Assuming Fayiz would someday have his "day in court," I prepared him for the probability that "justice" would come in the form of a military commission - a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.
Admittedly, under the laws and customs of war, a nation may detain "enemy combatants" for the duration of an armed conflict. But in an "armed conflict" as ambiguous as the War on Terrorism, can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the "War on Terrorism" will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.
We are at a key juncture in our nation's history. We can give in to political expediency and fear, or we can restore the rule of law and uphold our country's founding principles. Let's not go down the slippery slope of indefinite detentions.
Obama has already signaled his intentions to indefinitely detain those prisoners who have been tortured and cannot be tried fairly. This is evil, and I am so glad you have written about it. I can't think why he wouldn't sign a Congressional bill with the same intent: To codify indefinite detention without trial. Good lord; what sort of nation are we?
February 16, 2010 10:02 PM | Reply | Permalink
"One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption."
Maybe it was all one big lie. I sure felt like that in the seventies. I mean we do not like a democratically elected Allende and Kissinger just orders the kill. Kissinger still brags about it.
No we either believe in the rights included in this paragraph, or we don't. This is ridiculous.
A serial killer can rape and kill many people and get a trial.
Good luck to you. honest.
February 16, 2010 10:11 PM | Reply | Permalink
"We are at a key juncture in our nation's history".
we are indeed.
and we are traveling quickly down one road.
and its called Totalitarian Democracy.
February 17, 2010 10:05 AM | Reply | Permalink
I really don't understand. Most of the prisoners in Gitmo have been transferred or released. Hell, a little more political backbone and it would had closed down in a month. Why bring this up again?
February 17, 2010 2:48 PM | Reply | Permalink
Fred M ? Where are you on this one ?
February 17, 2010 2:48 PM | Reply | Permalink
As I understand it, the Obama Administration is undeterred in its commitment to close GITMO, but slowed by political, legal, and practical forces. I expect to see it closed.
It is also trying to resolve the fate of every GITMO detainee and has accomplished this for most. There are still a few for which indefinite detention is seen as the lesser evil for the present. This, as I understand it, relates to the nature of evidence against them - in particular evidence that is tainted because it was obtained by illegal methods in other countries. These individuals are perceived to be dangerous, no other nation we trust can yet be persuaded to take them, Congress will not permit their release in the U.S., and so a dilemma exists for which both choices are wrong.
As a legal matter, enemy combatants are not equivalent to individuals charged with a crime and entitled to the presumption of innocence. That doesn't mean that they don't deserve justice, but justice involves protection not only for suspected indivdiuals but also those they might harm if released. In addition, "indefinite" is not synonymous with "forever". I believe the Administration is hoping to clear all the cases eventually.
Because the Administration has a responsibility for consequences that is not shared by any of us who opine from the sidelines, I'm more sympathetic to their quandary than are some others. My advice at this point is for some patience, because this issue may cease to exist within the next few years.
February 17, 2010 4:21 PM | Reply | Permalink
We are squandering credibility, something that money cannot buy and will take generations to restore. The mere mention of terror, Muslim, or secrecy result in people accepting the strangest answers and outcomes.
Impossible to give these guys trials? I view impossible as going to Saturn or living without oxygen. Providing fair trials in the light of day in America is very possible.
February 17, 2010 3:48 PM | Reply | Permalink
I keep wondering what the difference is between "indefinite detention" and a bullet to the head, and which is the more humane treatment.
February 17, 2010 7:36 PM | Reply | Permalink
I think I could tell.
Hi Miguel - I noted your comment in David Seaton's Afghanistan thread regarding Quinn's statement about the remarkable similarity between my writing and Rutabaga Ridgepole's. In order not to spoil my image there of a stodgy, humorless pedant (who is nevertheless always right), I didn't respond there, but I do have to say that the similarities are not nearly as striking as the facial similarities I noted there between you and Quinn. Are you sure you didn't invent the fictional character of Quinn in order to engage in witty putdowns without spoiling your own reputation for fair-minded if incomprehensible philosophizing? I note that no-one has ever seen the two of your together in the same room, but maybe I'm too cynical. I'm sure there's a more innocent explanation.
February 17, 2010 9:19 PM | Reply | Permalink
hehe
February 18, 2010 11:18 AM | Reply | Permalink
That's pretty funny Fred, and I suppose I must have written incomprehensibly with regard to you at least, as to my intention, (as Quinn's comment, to my own limited interpretation, was high sarcasm IMO), which was to highlight the absurdity that you and the blue vegetable could remotely be considered the same persona. I don't think either of you, unfortunately, are that talented a writer.
I'm not sure what your point is in the "never having been seen in the same room" comment. To my knowledge only those who made it to TPM get-togethers have been in the same room. If you're referring to a blog as a "room" there are, I'm sure ways of maintaining such a charade, though, for the record, it's a practice in which I've never been inclined to participate. I do love Sir Edmund Crankypants however, though I just noticed his blogs have been deleted.
I'm pleased you find my reasoning "fair minded", however as to incomprehensible philosophizing, I'll leave that up to you as you seem to be an adept, judging by your long winded ramblings which all too often present opinion as fact to those you consider of a more diminutive intellectual caliber.
February 18, 2010 1:46 PM | Reply | Permalink
Fred, Another observation I will make is that there is perhaps a “fuzzy philosophy” which is wholly your own embodied within the moral certitude with which you seem able to distinguish the unambiguous superiority of a lifetime of incarceration sans the right of habeas corpus upon which our judicial system was more or less built from the Magna Carta on to the present over simple assassination.
February 19, 2010 6:14 PM | Reply | Permalink
Hey, Miguel - I owe you an apology. I was just horsing around with all my comments - none intended seriously, including the "incomprehensibility" of your writing. If I had taken more time to read what you've written, I would probably have appreciated some of the nuances.
As to my own lack of writing talent, I suppose you're referring to my recent Nobel Prize for Literature. You think I didn't deserve it. I agree, but who are we two to argue against the wisdom and judgment of that entire august body?
February 19, 2010 7:50 PM | Reply | Permalink
No worries Fred. I'll just try to ignore your insults henceforth as just your version of "horsing around" and I admit, that I don't always read your comments through to the end either. Congrats on the Nobel.
February 20, 2010 8:10 PM | Reply | Permalink
President Obamarahma has proven to be a spineless failure, who remembered history and unfathomably chose to repeat its worst episodes. The first Commissions trial, of the child soldier Omar Khadr, is not scheduled to begin until July, after eight years, and my guess is that it won't even begin then. The 9/11 defendants, if tried by a Military Commission, will take years to litigate, so complex is the evidence, so untested is the law, and so inept have their prosecutors proven to be so far. (E.g., "Does the Military Commissions Act of 2006 permit an accused to plead guilty to a capital offense? Gee, I dunno. Let me take two years to research the issue.") The arguments against trying these alleged terrorists and war criminals in Article III courts are the product of cowardice, fearmongering, and ignorance. I laugh every time I hear a Senator denounce the possibility of "giving terrorists access to our federal courts." Guess what, Senator Dunce, you voted for the MCA which -- surprise! -- gives convicted detainees the right to have their cases appealed to the DC Circuit. Now, I know DC may seem like some nether part of America, but the DC Circuit is surely a federal court.
Try these detainees in Pennsylvania. We could use the money, and there will be a million or so PA veterans who will gladly pick up a weapon once again and stand post. PA doesn't breed cowards. We cling to our guns and our Bibles because it's a way of life we happen to value. We'll defend it to the end.
February 17, 2010 4:55 PM | Reply | Permalink
You really hit the nail on the head! Couldn't have said it better.
February 20, 2010 5:36 PM | Reply | Permalink
How much would it have cost our enemy to show this side of America to the world? The mere mention of terror results in billions of needless spending; just look at the "panty bomber."
Now I'm sure the WWII vertrans would have cowered in the corner had that occurred then. To bad, because it is their honor we are flushing with every disgusting political play on terror resulting in more war and killing. Hearts and minds huh?
I guess being a good German is so much easier.
February 17, 2010 5:57 PM | Reply | Permalink
There are practical issues at work that are not easily brushed aside. The most recently quoted statistics are that 1 in 5 detainees returns to actively engaging in terrorist acts. So, we have fifty detainees that we are looking at holding indefinitely, that means that possibly ten will return to actively engaging in terrorist acts.
Pick your favorite street in America. Release all fifty in that neighborhood. This is what the administration potentially faces. This is the reason for the hesitation.
How eager would any other country be to accept these people? Would Ireland accept them? Russia? Egypt? The Saudis accepted a large number already. Eleven of those escaped from reeducation camps in Saudi and fled to Yemen where they rejoined the struggle. Would the Philipines accept them? How about Beaverton, Oregon?
The answer lies with Congress. I know that sounds like a really ridiculous statement, but the Constitution says that Congress can create courts lower than the Supreme Court and that Congress has the power to define and punish felonies and piracies on the high seas and crimes against the laws of nations. So, the fact that it is a Senator who is discussing this with the President should not be a surprise. It is, in fact, a sign that our laws are at work. Perhaps dysfunctional at times, but working nevertheless.
Incidentally, the Military Commissions Act of 2006 did not exist when many of the 319 were tried in federal civil courts. So, the idea that the Bush Administration did things that way somehow bolsters the argument for federal civil courts is a bit silly. There were so many challenges and roadblocks placed against military tribunals that federal civil courts were the only option. The Bush Administration did not use civil courts, because they thought they were the best option--it was the only viable option available.
February 17, 2010 7:32 PM | Reply | Permalink
geez
February 17, 2010 7:47 PM | Reply | Permalink
I'm not sure what laws you anticipate Congress being able to establish that will circumvent the rules of evidence whether in civilian or military courts, which seem to be the impasse in bringing that 10% to successful prosecution. I would be interested to hear what you think that would look like in the real world, and how it would not run counter to our own constitution as well as international agreements, specifically the Geneva Convention. My own feelings are we lose more by not turning them loose. We can attempt to monitor their activities through surveillance to the extent possible. Agree the decision is a political football, that will likely become a political liability for those who actually have the courage to place the fundamental right of habeas corpus above political expediency.
February 18, 2010 2:44 PM | Reply | Permalink
What an irony our country embraces. These detainees are prisoners of war for detention purposes but illegal war criminals for purposes of interrogation. It seems as if the most fitting response would be to show the world that our federal courts can handle and adjudicate the allegations against detainees like Kandari.
February 18, 2010 9:22 AM | Reply | Permalink
The thing that is so very sad is that the Dich Cheneys and the Liz Cheneys and the Mary Matalins have so scared the Joe Sixpacks and the Susie Wineboxes that when the underpants bomber tried to pull off his idiotic caper he screwed the detainees that should not be and never should have been detained. There are people in GITMO who should not be there. That is a fact.
The Obama administration have released a handful but there are others that were on their way out. Now because of the Cheneys these people's live are put on hold for a lot longer. The Bush Administration released some detainees and some of those have gone back to their terrorist ways. The underpants bomber has brought this to the forefront. People are now saying that if you release a detainee they will come back and haunt us.
It is sad that there are some who would not come back and haunt us because they should not have been put there in the first place and would like to move on and continue their lives. The problem is that if the Obama administration releases any of these guys and if one, just one, of them goes back to terrorism or in some cases, begins terrorism (because they were never a terrorist until Cheney had them tortured to the point where they want to do anything they can to destroy their torturers) Obama will have something else to defend himself against that he does not want to do at this time.
So detainees like Fayiz al-Kandari (Google him) are held in the GITMO torture chamber and have no horizon (the end of their stay) to look at. Somehow we have to get the Obama administration back on track to get the innocent detainees out of GITMO and on with their lives. We cannot be afraid. We cannot be very afraid.
February 18, 2010 12:34 PM | Reply | Permalink
For whom the bell tolls? Look around at the ever changing legal system. Will those who don't agree with the government someday be detained. We are on a slippery slope. Can't they see that to allow indefinite detention destroys our entire legal system, the foundation of our freedoms? Enough is enough, take these detainees to trial or free them! The bell may toll for any of us sooner then we think.
February 19, 2010 9:37 AM | Reply | Permalink
Thanks, Barry. A year ago we were all very encouraged that the Obama administration was going to change "business as usual."
Now we see the reality: it's like that old song by The Who: "Meet the new boss . . . same as the old boss . . . . "
February 19, 2010 12:55 PM | Reply | Permalink
Obama is making a mistake ignoring his mandate for justice. I really thought he had a backbone. Hopefully he pulls a "Trump" and says, "You're fired".
February 19, 2010 4:39 PM | Reply | Permalink
We need to get back to how Gandhi applied the teachings of Jesus and other non-violent geniuses. Radical Military Extremism is the biggest threat to democracy and freedom.
A society must be judged by how it treats the weakest, most outcast members and foreigners. God sternly warned Israel over and over again to treat foreigners in their land justly and with compassion.
The way the USA applies "rule of law" to enemies indicates how they'll apply it to citizen dissenters and others who may feel secure and safe for the moment.
Torture and detaining without due process and legal representation is the hallmark of tyranny.
We must forsake the Babylonian worship of militaristic Marduk and the Eternal War Doctrine of savage militaristic misanthropy.
Down with all domination systems.
February 19, 2010 9:48 PM | Reply | Permalink
Barry, I so admire the work you do, the courage you possess to stand up for what is "right" despite the risks you fearlessly accept in your relentless struggle to overcome the obstacles erected by none other than your own employer. Here, in Canada, a slight majority of us have been very vocal in our desire to repatriate Omar Khadr and yet the government, or more precisely, the Prime Minister remains deaf, dumb and mute in this regard. I fear that we have entered a rebirth of imperialism... imperialism with a twist however, one whose focus is inward not outward, domestic not international, the spawn of which is the "Imperial Presidency". For this very reason, the tolling of the people’s bell must reverberate with stentorian passion and infinite dedication. Your clear, strong voice offers light in the darkness which reverberates and inspires in my heart and home.
February 20, 2010 2:20 AM | Reply | Permalink
Barry, I so admire the work you do, the courage you possess to stand up for what is "right" despite the risks you fearlessly accept in your relentless struggle to overcome the obstacles erected by none other than your own employer. Here, in Canada, a slight majority of us have been very vocal in our desire to repatriate Omar Khadr and yet the government, or more precisely, the Prime Minister remains deaf, dumb and mute in this regard. I fear that we have entered a rebirth of imperialism... imperialism with a twist however, one whose focus is inward not outward, domestic not international, the spawn of which is the "Imperial Presidency". For this very reason, the tolling of the people’s bell must reverberate with stentorian passion and infinite dedication. Your clear, strong voice offers light in the darkness which reverberates and inspires in my heart and home.
February 20, 2010 2:27 AM | Reply | Permalink
My Canadian sister says it so well. How can anyone defend what happened in Guantanamo? Tymlee you have been such a strong human rights fighter. Please keep up your good work.
February 20, 2010 10:28 AM | Reply | Permalink
Good work Barry.
Ahmed Errachidi who spent 8 years at GTMO (4 in solitary) asks: "How can you hold somebody in a cage for 9 years with no trial and no proof of a crime in the past and claim that this person poses a threat in the future?"
Succinct. The fact that they may have been "radicalized" is absolutely no justification for continued detention - that's a negative feedback loop.
If the principal concern is recidivism, shouldn't the US apologize, offer them residency, help them reintegrate and get them (and their communities) on our side? Obviously not, judging from the public debate. Some people seem to think that it's okay for the US to emulate the likes of Egypt, Algeria and North Korea with respect to detention.
February 25, 2010 2:45 PM | Reply | Permalink