Justice at Stake: Ensuring That Prisoners in the U.S. Are Never 'Disappeared'

Critics of the War on Terror have argued since 9/11 that the Bush administration's multifaceted betrayal of human rights and constitutional freedoms poses a greater threat to our society than the threat it means to address. From domestic spying to Guantanamo Bay, torture by U.S. authorities to kangaroo courts, our prevailing practices have undermined the notion that we operate according to the rule of law, leaving the War on Terror looking more like a War of Terror. The Military Commissions Act of 2006 (MCA) is an especially egregious case in point.

The MCA was ill-considered legislation passed in haste by a right-wing Congress that the American people have since rejected. Its most problematic provisions have drawn worthy criticism, but those provisions should not be repealed piecemeal. Instead, the MCA should be rescinded in its entirety. To the extent it offers any legitimate tools to law enforcement authorities, they should face calm, considered debate in the light of day.

Among the rights desecrated by the MCA are the right to representation and access to judicial review. The MCA rescinded habeas corpus for detainees at the president's whim, while Pentagon regulations have long restricted access by lawyers and the Red Cross to detention facilities. Not only have we condoned torture, we have muzzled lawyers seeking justice for its survivors.

The suspension of habeas rights is especially terrifying, for its original emergence heralded a world-historical shift in the tension between individual autonomy and rights versus arbitrary state power. Historically, the sovereign could act at will. "Off with his head" may seem a garish thing for the queen in Alice In Wonderland to say, but it was a decidedly less amusing edict for the subjects of pre-Magna Carta monarchs. Habeas was among the earliest and most fundamental bulwarks against such avarice, and our nation should pause before discarding it -- especially in the race to address a largely imaginary terror threat created by the idiocy of Republican presidents who armed and trained our current antagonists.

Without the right to demand that authorities "produce the body" of someone in their detention, U.S. authorities could -- like the Latin American paramilitaries they have long helped train -- simply make people disappear. When it still applied universally, habeas was a crucial check on the state's power to casually destroy people's lives.

On the one hand, the MCA suspended habeas only for some, namely "unlawful enemy combatants." And the first two military commissions conducted under its provisions -- as well as a panel of the U.S. Court of Appeals for the Fourth Circuit that recently ruled on the case of Ali al-Marri -- rejected the government's attempt to apply the MCA to the particular defendants before them. Finally, the Supreme Court recently agreed to hear the habeas appeal of Guantanamo detainees, reversing its prior decision to decline the appeal.

But on the other hand, the decision that halted the military commissions at Gitmo did so on the basis of a formalistic distinction between Congress' language in the MCA and the Bush administration's classification of detainees. That discrepancy will be either excused on appeal, or rectified by the administration -- which classified the detainees however it wished in the first place. Rigged Combatant Status Review Tribunals (CSRTs) offered a pretense of justice, while denying detainees even minimal procedural protections like the opportunity to challenge witnesses and contest evidence. And the Fourth Circuit ruling was exceedingly narrow, covering only enemy combatants living legally in the United States when captured. Finally, the Supreme Court is an unlikely source of relief, given that it rebuked the administration in the Hamdan case only because Chief Justice Roberts was ethically barred from hearing the case -- which he previously judged while interviewing for his Supreme Court nomination as a judge on the D.C. Circuit -- a second time.

Moreover, the denial of habeas rights is merely part of the story. In addition to rescinding rights that have long served as cornerstones of our democratic Republic, the MCA authorizes torture, while immunizing the authorities responsible for it from prosecution for human rights violations.

While the contemporary debate often reflects vitriolic outrage at the seemingly sudden and unprecedented betrayal of our nation's legacy as a promoter of human rights, it tends to overlook that torture has actually been a longstanding instrument of U.S. policy. Our nation's history includes massacring entire villages in an imperial invasion of Vietnam that left millions dead; targeting Japanese civilians with weapons of mass destruction and slaughtering over a quarter of a million of them within just four days; and committing genocide against the indigenous natives of an entire continent ... from which we now seek to exclude newcomers. It should come as no surprise that we have long violated the same human rights principles that, at more reflective times in our history, we helped promote.

Torture in the United States started long before 9/11. Over the same period that draconian criminal sentencing laws have left a greater proportion of our population in prison than any other country in the world (including China), laws enacted to stem a rising tide of prisoner lawsuits have denied inmates access to justice for abuse such as beatings or even rape. And since the beginning of the Cold War, the U.S. military has played a leading role as a violator of human rights in Latin America. The Army continues to operate a school at Fort Benning, Ga., that trains Latin American militaries in torture techniques, enabling state-sponsored terror campaigns against their own citizens. What differentiates the School of the Americas (now known as the Western Hemisphere Institute for Security Cooperation, or SOA / WHINSEC) from the al-Qaeda camps bombed by U.S. warplanes in Afghanistan? Seemingly little, apart from the flags flying over each facility.

Many victims of American torture policies are innocent of any wrongdoing, like Sister Dianna Ortiz, the American nun who was captured, beaten, raped and tortured in Guatemala nearly 20 years ago before discovering that her torturers were trained at the SOA/WHINSEC and that she was abused in a facility run with the active complicity of the CIA. Canadian Gitmo detainee Omad Khadr may not be the most savory character, but he was only 15 years old when captured.

Before one of the first military commissions rejected his prosecution for war crimes (on the relatively weak, formalistic theory that the CSRT classified him only as an "enemy combatant," without ruling as to whether he was also "unlawful"), American University law professor Muneer Ahmad said, "The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes." Nor are we the first to be confronted with the choice: The prosecution of child soldiers "did not happen in the former Yugoslavia, it didn't happen in Rwanda and it didn't happen in Sierra Leone, where kids were involved in all sorts of horrific war-crime activities."

Yet reprehensible rights violations -- even those as barbaric as a CIA agent allowing soldiers he oversaw to extinguish cigarettes on the breasts of a 29-year-old American nun whom they had raped -- will go unpunished, because the MCA affirmatively insulates human rights abusers from facing justice. It includes an extraordinary retroactive provision ensuring immunity for U.S. officials who commit torture or war crimes. According to his former colleague Henry King, Supreme Court Justice Robert Jackson was "the architect of Nuremberg, [and] would turn over in his grave if he knew what was going on at Guantanamo." Even well before 9/11, the United States refused to ratify participation in the International Criminal Court, fearing that doing so would expose our own soldiers, as well as their elected civilian commanders, to prosecution.

Our torture policy has been reaffirmed on several occasions: by every Congress to approve funding for the SOA/WHINSEC over the last 40 years; in the infamous "Torture Memo," by then-Justice Department lawyers Jay Bybee (who now holds a lifetime seat on a federal appellate court) and John Yoo (who, according to recent reports, acted at the behest of Vice-President-Run-Amok Dick Cheney); and once again in revised interrogation guidelines released this June. While the president's dictatorial approach was briefly constrained by the Supreme Court's four moderates in the Hamdan decision, the Republican-led Congress quickly passed the MCA to restore the authority struck down by the Court.

Congress is currently debating several bills, notably proposals by Sen. Christopher Dodd, D-Conn., and Rep. Jerome Nadler, D-N.Y., that would restore habeas and repeal some of the MCA's most heinous provisions. But these legislative half-steps are not enough to redeem the practices that would remain. Sister Ortiz, who after surviving her torment went on to establish the only organization in the United States run by and for torture survivors, notes that "this law's sole purpose is to create an atmosphere permissive of torture," and "demand[s] a full repeal of the MCA."

Our country's post-WWII legacy entailed generosity to our former foes, the creation of inspired international institutions and an age of relative global peace. Faced with the chance to honor that legacy or ratify its ongoing betrayal, lawmakers should remember our nation's bloody past. We today can restore the ongoing American legacy of human rights, or cast it aside in favor of our longer, more consistent narrative of abuse and arbitrary violence. Members of Congress should recall the political mandate with which they were entrusted public office, heed the voices of those who have lived through the horrors of torture and repeal the MCA in its entirety.


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