Jumah Dossari has been imprisoned at GuantÃƒÂ¡namo for nearly four years without charges or access to his family, in nearly complete isolation. On October 15, he tried to hang himself in his cell, timing the attempt so that an outsider might see him dangling in a makeshift noose, his last message to the world. Dossari has more or less survived. (Military officials confirm that in the last few months, there have been at least 36 suicide attempts.)
While he was being revived, other prisoners at GuantÃƒÂ¡namo, who are being force-fed because they are on a hunger strike in desperation, like Dossari's, had their cases heard against "George W. Bush, et al.," in U.S. District Court for the District of Columbia.
I have seen many stories on the hunger strikers in the national and international press; but the clearest account I know, vividly detailing what George W. Bush and Donald Rumsfeld keep describing as the "humane" treatment of prisoners at Gitmo, is in Judge Gladys Kessler's decision on these cases in the D.C. District Court.
The prisoners are asking for a writ of habeas corpus challenging the government to prove the legality of their being held at the U.S. naval base. There have been hunger strikes at GuantÃƒÂ¡namo before; and this most recent oneÃ¢â‚¬â€according to the petitioners' lawyersÃ¢â‚¬â€included between 131 to 210 "detainees" of the 500 in prison. The Defense Department's statistics are reluctant and changeable, so that count may be larger.
At least 20 of the "detainees" claim they are being "forcibly subjected to involuntary medical intervention via the introduction of intravenous fluids or nasocentric (nasal) tube feeding."
In her memorandum opinion, Judge Kessler quoted a declaration by Julia Tarver, the counsel for three of the petitioners. It was submitted to the court after she had visited her clients at GuantÃƒÂ¡namo from September 30 to October 2 of this year.
Julia Tarver wrote that during the forced feeding of Yousef Al Shehri, as the tubes were inserted "through [his] nose, down the throat, and into the stomach, Al Shehri was given no sedative for the procedure; instead, two soldiers restrained himÃ¢â‚¬â€one holding his chin while the other held him back by his hair and a medical staff member forcefully inserted the tube in his nose and down his throat. . . . He could not speak for two days [and] he could not sleep because of the severe pain." Judge Kessler wrote that "the procedure caused him and other detainees to vomit 'substantial amounts of blood.' "
In a different prison location, where there was a hole in the floor in which to urinate, thicker tubes were inserted into prisoners' noses; and when one was removed from Al Shehri's nose, Julia Tarver wrote (in another passage quoted by Judge Kessler), "blood came gushing out of him. He fainted, and several of the other detainees almost lost consciousness."
Further indicating that the "humane treatment" the president continually pledges is mandated in the cells at GuantÃƒÂ¡namo, Yousef Al Shehri also said, according to Julia Tarver's account, that "in front of GuantÃƒÂ¡namo physiciansÃ¢â‚¬â€including the head of the detainees hospitalÃ¢â‚¬â€the guards took NG tubes from one detainee, and with no sanitation whatsoever , re-inserted it into the nose of a different detainee." (Emphasis in original.) The passage continued: "The detainees could see the blood and stomach bile from other detainees remaining on the tubes."
Judge Kessler then wrote: "Petitioners assert that because of this needlessly cruel and painful treatment, Al Shehri 'can no longer walk.' " The judge further quoted from Tarver's account: "He lost some of his vision, and he is vomiting every day. . . . He has severe headaches and great pain in his ear. He is only able to urinate once every few days. . . . He has given his last will and testament, as he fully anticipates that he is going to die."
Some years ago, I was in Judge Gladys Kessler's courtroom and admired the crisp decisiveness of her judicial temperament. Therefore, I was not surprised that in her ruling on these cases, she noted that the government, in its response to these charges, "pointed out that thus far, 'no one has died.' "
Said Judge Kessler: "It goes without saying that this Court need not wait to issue injunctive relief until a detainee has died."
She went on: "The court concludes that Petitioners have provided sufficient facts . . . to establish that the threat of death or serious physical deterioration is real and imminent, and that Petitioners have satisfied the requirement of facing irreparable harm unless injunctive relief is granted."
Kessler's conclusion was that these prisoners have a right to challenge their detentions, as the Supreme Court ruled; and to have meaningful access to their lawyers and the Court.
Moreover, from now on, the government must inform the prisoners' lawyers "within 24 hours of the commencement of any forced feeding." And the government must provide "medical records spanning the period beginning one week prior to the date forced feeding commenced," and must also continue providing medical records, "at a minimum, on a weekly basis until forced feeding concludes."
Meanwhile, Manfred Nowak, the U.N.'s special rapporteur on torture, has asked Donald Rumsfeld for permission to bring a team of U.N. human rights investigators to GuantÃƒÂ¡namo to interview the prisoners. Rumsfeld said they could come, but could not see the "detainees" privately. Nowak, refusing to come, said mordantly, "He said they have nothing to hide." Ah, but Rumsfeld is allowing an International Committee of the Red Cross delegation to have private meetings with the prisoners. That, said Nowak, is because Red Cross investigators cannot declare their findings publicly. The U.N. team can.
Rumsfeld says of the hunger strike that these "detainees" are merely "fasting" for brief periods in rotation with each other.
"U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world [under international law]."
Kenneth Roth, executive director, Human Rights Watch, Dec. 27, 2002
"U.S. Navy documents released today by the American Civil Liberties Union reveal that abuse and even torture of detainees by U.S. Marines in Iraq was widespread. ... ACLU executive director Anthony D. Romero [said] "this kind of widespread abuse could not have taken place without a leadership failure of the highest order."
American Civil Liberties Union, Dec. 14, 2004
The president insists that Defense Secretary Donald Rumsfeld will remain in office, and on Dec. 19, Bush's chief of staff, Andrew Card Jr., said on ABC News' "This Week" that "Secretary Rumsfeld is doing a spectacular job and the president has great confidence in him."
However, on Dec. 9, Sen. Jeff Bingaman, Democrat of New Mexico, wrote Rumsfeld to express his "deep concern over issues related to detainees being held in Iraq, Afghanistan, and Guantánamo Bay, Cuba. Recent reports indicate that not only were detainees mishandled and interrogated in a manner inconsistent with the Geneva Conventions, but that subsequent internal reports of abuse appear to have been suppressed. ..."
"While the abuse of detainees is unacceptable under any circumstance, reports of the suppression of evidence regarding abuse are extremely disturbing. ... Please inform me of the actions you intend to take." As of this writing, there has been no response.
For two yearsin this column, as well as from human rights groups and the press, particularly the reporting of Dana Priest in The Washington Postthere has been mounting evidence of torture of prisoners by American forces, including "ghost prisoners" in secret CIA interrogation centers.
These reports include stories of "extreme interrogation techniques" used by Special Operation Forces (Navy SEALs, Delta Force, et al.) under the direction of Donald Rumsfeld and his close associates in the Defense Department. Rumsfeld has long encouraged the use of Special Operation Forces.
But now, with the release by the ACLU of actual government documents not intended for the public to see, the president is confronted with irrefutable evidence of continued violations of not only the 1949 Geneva Conventions and the U.N. Convention Against Torture, but also our own torture statute forbidding such practices.
As for the suppression of evidence, there is this Dec. 8 report in The New York Sun by Paisley Dodds of the Associated Press on the documents released by the ACLU:
"[U.S.] Special Forces [accused of abusing prisoners in Iraq] ... monitored e-mail messages sent by [troubled Defense personnel in the field] and ordered them 'not to talk to anyone' in America about what they saw."
U.S. Navy documents released by the ACLU include "interviews with Navy personnel [about] routine abusive treatment of detainees by U.S. Marines in Iraq. ... In one interview, a Navy medical officer described the regular process by which Iraqis classified as Enemy Prisoners of War would be taken to an empty swimming pool, handcuffed, leg-cuffed, and have a burlap bag placed over their head.
"They would then remain in kneeling position for up to 24 hours awaiting interrogation. Despite this description, the [navy medical] officer stated that he 'never saw any instances of physical abuse' towards the detainees."
And from Richard Serrano in the Dec. 15 Los Angeles Times:
"Marines in Iraq conducted mock executions of juvenile prisoners last year, burned and tortured other detainees with electrical shocks, and warned a Navy corpsman they would kill him if he treated any injured Iraqis."
That was one of the stories based on documents released by the ACLU through a Freedom of Information Act lawsuit that was joined by Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace and the Center for Constitutional Rights.
The latter organization has compiled a massively documented indictment of Donald Rumsfeld, former CIA director George Tenet, and other U.S. officials and military personnel for war crimes perpetuated against Iraqi detainees at Abu Ghraib.
The charges have been filed at the German federal prosecutor's office at the Karlsruhe Court in Karlsruhe, Germany, where, "under the doctrine of universal jurisdiction, suspected war criminals may be prosecuted irrespective of where they are located." (Also see James Ridgeway's "'War Crimes' Murmurs," Mondo Washington, Dec. 22-28, 2004.)
After the photographs of the repellent Abu Ghraib abuses were circulated around the world, the president attributed those atrocities to "a few bad apples" in the lower ranks of the military.
One of those "bad apples" is Lynndie England, the soldier smiling, pointing to the genitals of a prisoner at Abu Ghraib, and holding a naked prisoner by a leash. She could face a prison term of up to 38 years. But how long will Donald Rumsfeld and other august officials in the Defense Department, along with administration lawyers who have provided contorted permission to these crimes, avoid accountability?
How many members of Congress will join Sen. Jeff Bingaman in his attempt to open the Defense and Justice departments to the rule of American law? Will we hear from New York Senators Schumer and Clinton, who have been silent on the question of torture? Or will a judgment on Rumsfeld et al. be made only in Germany?
Will the president speak about an FBI agent's account, released by the ACLU on Dec. 20, of interrogations at Guantánamo in which detainees were shackled hand and foot in a fetal position on the floor and kept in that position for 18 to 24 hours at a time until most had "urinated or defacated [sic]" on themselves?
The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation's history. These claims put President George W. Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security ...
Stuart Taylor Jr., former New York Times Supreme Court reporter, "America's Best Choice?," Legal Times, Nov. 15, 2004
In a scathing lead editorial (Nov. 22), "Mr. Gonzales' Record," The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president's appointment of Alberto Gonzales to be this nation's chief law enforcement officer, the daily protector of the Constitution: "Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his governmentin their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courtsqualified to serve as attorney general?"
As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.
Actually, The Washington Post's challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave inafter harrumphing at Gonzales for some hours.
I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what's actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.
Even the Democrats' attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That's like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he'd get his way.
The Democrats prefer to hold their fire until the next Supreme Court nominee. As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.
In a recent detailed summary of Gonzales's record as White House counsel, the Reporters Committee for Freedom of the Press (I'm on its steering committee) emphasized: "Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny."
So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the Web site of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating antiPatriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.
Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration's subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.
The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: Membership Department; NY, NY 10004; 212-549-2585).
Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.
He warned: "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the airhowever slightlest we become unwitting victims of the darkness."
The changes in the air have become much more than slight. The twilight is deepening, but so is the resistancedespite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.
Bush's re-election ensures that he and John Ashcroft's designated successor, Alberto Gonzales, will press Congress hard to retain the Patriot Act in its entirety, and enact a Patriot Act II that will further disable the Constitution.
There are two primary roadblocks to further assaults on our liberties. Despite continued Republican control of Congress, there is still a firm alliance there between civil-liberties Democrats and conservative Republican libertarians, especially in the Senate. That coalition will continue to oppose Bush's determination to fight the Patriot Act's "sunset clause," which permits reconsideration of parts of the act by December 2005.
During the presidential campaign, Bush repeatedly urged Congress to ignore the "sunset clause" and enshrine the Patriot Act permanently. The Bill of Rights Defense Committee resolutions in nearly 400 cities and towns, and four state legislatures, will keep the pressure on Congress to resist this expansion of executive powers.
Our second hope is the awakening lower federal courts, which are now challenging sections of the Patriot Act. But even if these judicial curbs on Bush and Ashcroft grow, any such victories can be overturned by the Supreme Court, to which Bush is going to make at least one appointment, and possibly more, by the end of his second term.
These are obviously perilous times for constitutional freedoms. But attention should be paid to the strongest blow yet against Bush and the Patriot Act – the September 28, 2004, decision by Federal District Judge Victor Marrero in New York in John Doe, American Civil Liberties Union v. John Ashcroft and FBI Director Robert Mueller.
Judge Marrero struck down as unconstitutional on Fourth and First Amendment grounds section 505 of the Patriot Act that had greatly increased the government's capacity to secretly get large amounts of personal information by sending out National Security Letters, which do not require a judge's approval.
During one of the presidential debates, Bush flatly told an untruth – as Ashcroft often has on this subject – when he said that any action taken under the Patriot Act requires a judicial order. No judge is involved in National Security Letters under the Patriot Act.
The ACLU, which brought this lawsuit, explains that before the Patriot Act, a 1986 law allowed the FBI to issue these National Security Letters "only where it had reason to believe that the subject of the letter was a foreign agent." Section 505 of the Patriot Act, however, removed the individualized suspicion requirement and authorizes the FBI to use National Security Letters to obtain information about groups or individuals not suspected of any wrongdoing.
"The FBI need only certify – without court review – that the records are 'relevant' to an intelligence or terrorism investigation." (Emphasis added.)
Who decides what "relevant" means? The FBI, all by itself. That's why its headquarters are still named after J. Edgar Hoover. You can trust the FBI.
Jameel Jaffer, a lawyer for the ACLU involved in this case, told me both why the National Security Letters are so dangerous, and what the effect of Judge Marrero's ruling will be – if it is upheld by the appellate courts all the way up.
"The provision we challenged [that the judge struck down]," says Jaffer, "allows the FBI to issue NSLs against 'wire or electronic service communication providers.' Telephone companies and Internet service providers [are included.]" As Judge Marrero noted, the FBI could also use an NSL "to discern the identity of someone whose anonymous web log, or 'blog,' is critical of the Government."
Jaffer adds that by requiring information from telephone companies and Internet providers, "The FBI could . . . effectively obtain a political organization's membership list, like the NAACP or the ACLU, [and could] obtain the names of people with whom a journalist has communicated over the Internet."
Furthermore – dig this – every National Security Letter comes with a gag order. The recipients are forbidden to tell any other person that the FBI has demanded this information, and can't even tell their lawyers that the long hand of the government is scooping up their data.
As Judge Marrero said in his decision, this omnivorous invasion of privacy is so broad that it mandates this gag rule "in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient."
The scope of this court's setback to Big Brothers Bush, Mueller, and Ashcroft is underlined by Jaffer's point that if Judge Marrero's decision is upheld, it could "apply with equal force" to other dimensions of National Security Letters that allow the FBI to get personal information from financial institutions, including credit card companies and banks.
Furthermore, the much publicized and dreaded section 215 of the Patriot Act, which gives the FBI authority to search your personal data from your visits to libraries, bookstores, and other sources of information, could also be overturned.
In striking down the noxious National Security Letters section 505 of the Patriot Act, Marrero wrote: "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction . . . "
Marrero then emphasized a truth that ought to be kept in mind as George W. Bush, having won the popular vote, unlike in 2000, uses national security even more forcefully against the Constitution. Judge Marrero warns:
"Sometimes a right, once extinguished, may be gone for good."
But for now, as Judge Andrew Napolitano, Fox News Channel's resident – and admirable – constitutional analyst, says of the Marrero decision: "This stops the FBI from writing their own warrants."
During the campaign, John Kerry said nary a word about National Security Letters.
More than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Put it this way, they're no longer a problem to the United States and our friends and allies. – President George W. Bush, State of the Union address, February 4, 2003
These are people who were captured in different places in the world – in Pakistan, Morocco, Thailand, Indonesia – handed over to the U.S., and never heard from since. In some cases, we know that they are being held and being questioned; in other cases, we simply have no idea what may have become of them. – Reed Brody, Human Rights Watch, National Public Radio, June 19, 2004
It's essential [for Bush to bolster his position with a national address affirming that] the U.S. will not tolerate abuse of helpless people [even if they] happen to be our mortal enemies. – Former House Speaker Newt Gingrich, The Wall Street Journal, June 23, 2004
Battered by national and international outrage at photographs of the naked, contorted bodies of Iraqi prisoners at Abu Ghraib, the Bush administration selectively released hundreds of classified documents on June 22, purporting to show that the previously leaked Justice Department and Defense Department memoranda justifying torture were just "scholarly" ruminations never to be actually implemented on human beings.
The next day, deep into a front-page New York Times story on this bumbling three-card-monte ploy by the Bush team, there was this key paragraph:
"None of the documents released Tuesday sheds any light on the legal thinking behind the detention of a small number of high-level Qaeda operatives who have been detained by the Central Intelligence Agency at secret locations around the world and who have been subjected to coercive interrogations without access to lawyers or human rights groups."
A major error by the Times limits these ghost prisoners to "a small number." I too was at fault in a previous column, "Disappearing Prisoners" (July 7-13), because, when writing it, I had not yet seen a 43-page, painstakingly annotated report, "Ending Secret Detentions," by an invaluable organization, Human Rights First (formerly named the Lawyers Committee for Human Rights).
The group's previous extensively detailed analyses of the Bush administration's shadow Constitution that is bypassing the Bill of Rights and the separation of powers have been vital to my research for these columns and for my book The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press).
The headline on Human Rights First's press release about this new report, which is now reverberating in news media around the world, is "U.S. Holding Prisoners in More Than Two Dozen Secret Detention Facilities Worldwide." It adds that "at least half of these operate in total secrecy." These offshore prisons are "beyond the reach of adequate supervision, accountability, or law [and the Geneva Conventions]. . . . Human Rights First calls on the Administration to give the International Committee of the Red Cross (ICRC) immediate access to all those it is holding in custody in the 'war on terror.' "
On June 18, National Public Radio's Nina Totenberg reported, on National Public Radio (a persistently useful source on these abuses of international law): "The Red Cross, according to knowledgeable sources, has repeatedly warned administration officials that they were not complying with international law in the treatment of prisoners."
But Donald Rumsfeld, echoing the commander in chief's hollow homilies, said at the Pentagon on June 17: "I have high confidence that I have not seen anything that suggests that a senior civilian or military official of the United States of America has acted in a manner that's inconsistent with the president's request that everyone be treated humanely."
What about the more than 24 secret interrogation centers around the world? Agence France-Presse, having seen Human Rights First's report, noted on June 19: "The U.S. has refused to confirm or deny the report on secret detention cells" – not wanting, said an official in Afghanistan, to give "our enemy too much information." The news agency quoted – from Geneva – Erof Bosisio of the International Committee of the Red Cross:
"We are more and more concerned about the lot of the unknown number of people captured . . . and detained in secret places. We have asked for information on these people and access to them. Until now we have received no response from the Americans."
But on June 1, Republican senator John McCain, for many years imprisoned and tortured by the North Vietnamese, reminded the president and the defense secretary: "It is critical to realize that the Red Cross and the Geneva Conventions do not endanger American soldiers, they protect them. Our soldiers enter battle with the knowledge that should they be taken prisoner, there are laws intended to protect them and impartial international observers to inquire after them."
By hiding what may very well be intensely coercive interrogations – torture? – of these ghost prisoners, the Bush administration is giving added license to forces that capture American soldiers and also have no regard for international law.
In addition to hundreds held in Afghanistan and at Guantanamo Bay, Human Rights First emphasizes, "thousands [are] held in more than a dozen locations in Iraq, some officially undisclosed, and an unknown number in Pakistan, Jordan, Diego Garcia, and on U.S. warships at sea."
Where are the members of the House and Senate intelligence committees who have insisted on implementing the Supreme Court's ruling that anyone held in our custody be given due process – the right to defend themselves publicly?
Since 9-11, the president and other leading figures in his administration have piously pledged that whatever they do to make us secure from homicidal jihadists is, and will be, within the bounds of the Constitution.
The actual mind-set of the Bush team, however, was disclosed by Defense Secretary Donald Rumsfeld (Newsday, September 15, 2002): "Anything that comes up in the United States tends to be looked at as a law enforcement matter . . . 'decide whether or not he's guilty or innocent and give him due process.'
"Of course," Rumsfeld continued, "if . . . you've got the risk of terrorists . . . killing thousands or tens of thousands of people, you're not terribly interested in whether or not the person is potentially a subject for law enforcement."
And even when arguing before the Supreme Court on April 28, 2004, Deputy Solicitor General Paul Clement told the justices, "Where the government is on a war footing, you have to trust the executive."
On June 28, ruling on American citizen Yaser Hamdi, held without charges for two years, incommunicado, in a navy brig in South Carolina as "an enemy combatant" – put away solely by the president – the Supreme Court vigorously instructed George W. Bush:
"We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law."
No president, said the Court, is above the Constitution, and while George W. Bush is commander in chief of the armed forces, he is not commander in chief of the rest of us.
The decision that Hamdi has the right to appear personally before a court or some other "neutral decision maker" and rebut the government's evidence against him was 8-to-1. Only Clarence Thomas is still willing to trust the government.
Antonin Scalia, in a scholarly partial dissent, said the majority had not gone far enough. Either charge Hamdi with treason, he said, or get Congress to suspend the writ of habeas corpus (the fundamental right of any imprisoned citizen to go to a court and have the government prove the lawfulness of his or her incarceration). Otherwise, Scalia said to the Bush teams, release Hamdi.
Since Antonin Scalia is not a card-carrying member of the American Civil Liberties Union, his rejection of the president's assertion of unfettered executive powers in the war on terrorism is particularly resounding. He wrote:
"Many think it is not only inevitable but entirely proper that liberty give way to security in times of national crisis. . . . Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it." (Emphasis added.)
On a technicality, the Jose Padilla case has been sent back to a lower court; the Hamdi decision will apply to him as well.
In another June 28 Supreme Court decision, Rasul et al. v. Bush, Justice John Paul Stevens – writing for a 6-to-3 majority, including Sandra Day O'Connor – gave the administration another stinging setback. The hundreds of noncitizens imprisoned at Guantanamo, Cuba, without charges, also, said the Court, have been denied due process (fundamental fairness).
The president never went to law school, but his White House counsel, Alberto Gonzales, and his attorney general, John Ashcroft, have law degrees. But they never told George W. Bush that, as William O. Douglas once emphasized, "the history of liberty is the history of due process."
Said Justice Stevens: "[These detainees] have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercised exclusive jurisdiction and control."
All of them now have the right to a hearing in our court system, or before a neutral official body, to make the government lay out the evidence against them and prove they are being legally imprisoned.
The day after the decision, the Bush team declared proceedings would begin for some prisoners in military tribunals at Guantanamo. But the Defense Department's rules are so weighted in favor of the prosecution that even a number of military lawyers assigned to defend prisoners have publicly insisted these trials cannot be fair, and the National Association of Criminal Defense Lawyers has advised its members not to participate in the tribunals.
A far-ranging impact of the Guantanamo decision – as Adam Liptak noted in The New York Times – "may be the apparent extension of the right to habeas corpus to other non-citizens held abroad." And Joseph Margulies of the Center for Constitutional Rights told Financial Times, "The lesson of this decision is that there is no prison beyond the reach of domestic law." And that should include U.S. military tribunals, which, as of now, deny convicted defendants the right to appeal to our civilian courts. Also potentially entitled to due process are the hundreds of noncitizens imprisoned in more than 24 impregnably secret American detention centers around the world.
At least, finally, our constitutional separation of powers has been rediscovered by the Supreme Court. But much more sunlight is urgently needed from the courts and Congress.
"The person who is locked up, doesn't he have a right to bring before some tribunal . . . his own words?" --- Supreme Court Justice Ruth Bader Ginsburg, during oral arguments in the Jose Padilla and Yaser Hamdi cases, April 28, 2004
After two years during which Jose Padilla has been imprisoned in a windowless cell in a navy brig on American soil without charges--and in the final days of the Supreme Court's arriving at a decision in his case--Deputy Attorney General James Comey suddenly hurled a list of detailed accusations against this "enemy combatant" as designated by George W. Bush.
Comey was not speaking in a court-room but rather in a nationally televised press conference. Padilla could not reply to those denunciations in his own defense. Nor could his lawyers. The government had at last allowed them to speak to their client twice after the Supreme Court had surprised the Bush team by taking Hamdi's case. But their meetings with their client were listened to and videotaped by the government.
Moreover, one of Padilla's lawyers, Andrew Patel, tells me that the government has ruled that Padilla's attorneys cannot tell anyone what Padilla would say in answer to any government accusations because everything he told his lawyers is classified. Nor could his lawyers ask him about what he said in his interrogations.
James Comey, therefore, was free to say anything he wanted as he claimed that during the two years of interrogation Padilla "admitted" to certain assignments from Al Qaeda. Also, said Comey, those "admissions" were corroborated by a number of high-level Al Qaeda terrorists who have been interrogated about Padilla while in United States custody. But some of those sources told conflicting stories.
Was there any coercion to get those admissions? Keep in mind how information was extracted from our prisoners in Iraq, Guantanamo, and the Bagram Air Base in Afghanistan. Are there any photographs of Padilla--or his alleged co-conspirators--before and during their "admissions"?
Comey insists Padilla was not mistreated. Trust your government! Accepting Comey's stories of plots to blow up apartment buildings in New York, Florida, and Washington, among other plans, the Daily News--which trusts the government--titled its June 2 editorial headline "American Traitor."
But even the government's documents, to which Comey referred, concede in a footnote, as The New York Sun reported, that "Padilla tried to downplay or deny this commitment to Al Qaeda and the apartment building mission. He said he never pledged an oath of loyalty and was not part of the Al Qaeda. He said he and his accomplice proposed the dirty bomb plot [for which he was first arrested at O'Hare Airport] only as a way to get out of Pakistan and to avoid combat in Afghanistan. He said he returned to America with no intention of carrying out the apartment building operation."
How many Americans who heard or read Comey's extrajudicial public indictment of Padilla know about that footnote, to which Comey only barely referred? But Comey did admit that all of Padilla's connections to Al Qaeda that were "admitted" by Padilla could not be entered as evidence in an American courtroom because they took place without the presence of one of Padilla's lawyers. Again, trust your government!
In his statement, Comey insisted that the release of this "information" was in no way intended to influence the Supreme Court's decision as to whether American citizen Padilla should be entitled to the basic due process of appearing for himself in an American courtroom. The government, said Comey, just wanted to clarify for the public the reason for George W. Bush's most controversial unilateral decision, to take away from this American citizen the right to habeas corpus. This is the oldest act in the English-speaking world, to have a judge decide whether someone is being lawfully detained. Had he been actually tried, said Comey, his lawyer would have told him to be silent.
I do not believe Mr. Comey. I believe this last-minute Hail Mary plea was in fact aimed at the most powerful woman in the country. During Supreme Court oral arguments in the Padilla and Hamdi cases, Justice Sandra Day O'Connor seemed likely, as often happens, to be the fifth and deciding vote, and of all the justices, she was the most conflicted as to how to rule. Will the government strategy backfire because the sudden fusillade against Padilla was so transparently an attempt to manipulate the Supreme Court?
I'm not so sure. O'Connor, unlike Ruth Bader Ginsburg, can be swayed. However, the essential question before the court--which will decide whether future presidents have the authority to follow Bush into creating legal black holes for "enemy combatants"--was made clear during the oral arguments in this exchange between Justice John Paul Stevens and Deputy Solicitor General Paul Clement.
Stevens: "Are there any cases in the international field, or the law anywhere, explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from them is a legitimate justification?"
Clement: "I don't know that there are any authorities that I'm aware of that address exactly what you're talking about."
This definition of "enemy combatants" was a totally lawless act by George W. Bush. And as for Comey's devotion to the rule of law in this case, James Gordon Meek of the Daily News reported that during the Comey press conference, Comey, when asked about Padilla's future, said:
"We could care less about a criminal case [for Padilla] when right before us is the need to protect American citizens and to save lives. We'll figure out down the road what we do with Jose Padilla."
Where is that place "down the road," Mr. Comey, in the Constitution of the United States?
The objective of the Patriot Act [is to make] the population visible and the Justice Department invisible. The Act inverts the constitutional requirement that people's lives be private and the work of government officials be public; it instead crafts a set of conditions that make our inner lives transparent and the workings of government opaque. - Elaine Scarry, "Acts of Resistance," Harper's Magazine, May 2004
The Patriot Act makes it able for those of us in positions of responsibility to defend the liberty of the American people. - George W. Bush, quoted by the National Committee Against Repressive Legislation, May 2004
In March, at the Washington University School of Law in St. Louis, I debated Chuck Rosenberg, chief of staff to James Comey, John Ashcroft's second-in-command at the Justice Department. A former counsel to FBI director Robert Mueller, Rosenberg, a former prosecutor, has specialized in counterintelligence and counterterrorism.
The next day, the headline in the St. Louis Post-Dispatch story on the debate (March 22) was "Ashcroft Staffer Admits Patriot Act Is Unpopular." And Chuck Rosenberg was quoted in the story: "We're losing this fight."
The reporter, Doug Moore, told me Rosenberg had made that admission during the intermission in our debate. It wasn't my eloquence that deflated Rosenberg, but rather my focus that afternoon on the insistent resistance to the Patriot Act around the country--and in Congress.
By May, 311 towns and cities--and four state legislatures (Alaska, Hawaii, Vermont, and Maine)--had passed Bill of Rights resolutions instructing the members of Congress from those areas to roll back the most egregiously repressive sections of the Patriot Act, subsequent executive orders, and other extensions of the act.
According to Nancy Talanian, director of the Bill of Rights Defense Committee in Northampton, Massachusetts, and the primary organizer and coordinator of this campaign to preserve the Constitution, "Hundreds more communities and states are considering resolutions. Last December, the National League of Cities approved a resolution calling for amending the Patriot Act."
And on May 12, The Hill, a Washington publication that gets inside congressional maneuvers, ran a report by Alexander Bolton ("Presidential Push Fails to Quell GOP Fear of Patriot Act"): "A group of libertarian-minded Republicans in Congress is blocking President Bush's effort to strengthen domestic counterterrorism laws and reauthorize the USA Patriot Act, which the president has made one of his top domestic priorities this year."
Not the whole Patriot Act, but sections of it, come up for congressional renewal by December 2005. Bush is pressing hard for Congress to renew those parts now. Standing in his way, however, is Republican conservative James Sensenbrenner, chairman of the House Judiciary Committee. According to The Hill: "Sensenbrenner has made it clear to colleagues that he will not consider reauthorization of the bill until next year."
On April 20, Wired News (wired.com) quoted constitutional law professor David Cole, of the Georgetown University Law Center, on the resistance to the Patriot Act. Since 9-11, Cole has been the Samuel Adams of our time, a one-man version of the pre-Revolution committees of correspondence. Said Cole:
"One year after 9/11, National Public Radio did a poll and found that only 7 percent of Americans felt they had given up important liberties in the war on terrorism. Two years after 9/11, NBC or CBS did a very similar poll and they found that now 52 percent of Americans report being concerned that their civil liberties are being infringed by the Bush administration's war on terrorism. That's a huge shift."
And on April 14, in Salt Lake City, when the Senate Judiciary Committee chairman, Senator Orrin Hatch of Utah, came home to harvest support for the Patriot Act, among his fiercest critics was Scott Bradley of the Utah Branch of the ultra-conservative EagleForum. Bradley reminded Hatch--Ashcroft's premier cheerleader in Congress--of a prediction by Osama bin Laden in a BBC interview after 9-11. The arch-terrorist said:
"The battle has moved to inside America. . . . Freedom and human rights in America are doomed. The U.S. government will lead the American people and the West in general into an unbearable hell and choking fire."
Scott Bradley went on to tell Hatch: "The United States is stronger and braver than that," but "we must make absolutely certain that the rush for security does not . . . destroy what we really cherish about this great nation."
Then, this libertarian conservative confronted Orrin Hatch with a grave warning by James Madison in 1788:
"I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations."
The next day, as if to confirm Madison's prophecy, the Associated Press reported, "The number of secret surveillance warrants sought by the FBI has increased by 85 percent in the last three years, a pace that has outstripped the Justice Department's ability to quickly process them."
They'll process these warrants, which are authorized by the secret Foreign Intelligence Surveillance Act, the AP notes, for "wiretaps, video surveillance, property search and other spying on people believed to be terrorists or spies." And we'll never know if our records are being included in the databases. These are secret searches.
"If Americans win a war (not just against Saddam Hussein but the longer-term struggle) and lose the Constitution, they will have lost everything." --Lance Morrow, Time, March 17, 2003.
On March 18, the Associated Press reported that at John Carroll University, in a Cleveland suburb, Justice Antonin Scalia said that "most of the rights you enjoy go way beyond what the Constitution requires" because "the Constitution just sets minimums." Accordingly, in wartime, Scalia emphasized, "the protections will be ratcheted down to the constitutional minimum."
I checked with the Supreme Court for a text of this ominous speech and was told Scalia didn't use a text that night, but the quotation appeared to be accurate. I said, would Justice Scalia let me know? My question was relayed, but I've heard nothing since.
Most of the radical revisions of the Constitution that I and others have been writing about will ultimately be ruled on by the Supreme Court. Scalia indicates he will come down on the side of Bush and Ashcroft. A few days after the terrorist attacks on the World Trade Center and the Pentagon, Justice Sandra Day O'Connor said that as a result, we would have to give up some of our liberties. That's two of nine justices we are not likely to be able to depend on.
And in his 1998 book, "All the Laws but One: Civil Liberties in Wartime" (Knopf/Vintage), the chief justice of the United States, William Rehnquist, admiringly quoted Francis Biddle, Franklin D. Roosevelt's attorney general: "The Constitution has not greatly bothered any wartime president." And Rehnquist himself, who will be presiding over the constitutionality of the Bush-Ashcroft assaults on the Constitution, wrote in the same book:
"In time of war, presidents may act in ways that push their legal authority to its outer limits, if not beyond." And writing of Lincoln's suspending habeas corpus during the Civil War, Rehnquist said, "It is difficult to quarrel with this decision."
Reacting to Rehnquist's deference to the executive branch in previous wars, Adam Cohen, legal affairs writer for The New York Times, wrote: "The people whose liberties are taken away are virtually invisible" in the pages of Rehnquist's book.
Meanwhile, in an invaluable new report by the Lawyers Committee for Human Rights, "Imbalance of Powers: How Changes to U.S. Law and Policy Since 9/11 Erode Human Rights and Civil Liberties" (available by calling 212-845-5200), a section begins: "A mantle of secrecy continues to envelop the executive branch, largely with the acquiescence of Congress and the courts. [This] makes effective oversight impossible, upsetting the constitutional system of checks and balances."
So where is the oversight going to come from? If at all, first from the people pressuring Congress -- provided enough of us know what is happening to our rights and liberties. And that requires, as James Madison said, a vigorous press, because the press has been, he noted, "the beneficent source to which the United States owes much of the light which conducted [us] to the ranks of a free and independent nation."
But the media, with few exceptions, are failing to report consistently, and in depth, precisely how Bush and Ashcroft are undermining our fundamental individual liberties.
For example, in writing here about the Justice Department's proposed sequel to the PATRIOT Act (titled inoffensively the Domestic Security Enhancement Act), I noted that it had been kept secret from Congress. A week before it was leaked by an understandably anonymous member of Ashcroft's staff, a representative of the Justice Department even lied to the Senate Judiciary Committee about its very existence.
A few sections in that chilling 86-page draft were briefly covered in some of the media. But as I predicted after providing more details here ("Ashcroft Out of Control" and "Red Alert for the Bill of Rights"), these invasions of the Constitution were only a one- or two-day story in nearly all of the media.
How many Americans know that if the bill is passed (and Bush certainly won't veto it), they can be stripped of their citizenship if charged with giving "material support" to a group designated by the government as "terrorist"? Sending a check for the outfit's lawful activities -- without knowing why it landed on Ashcroft's list -- could make you a person without a country and put you behind bars here indefinitely. As Chief Justice Earl Warren said, "you lose the right to have rights" when you lose your citizenship.
How many Americans know that the FBI can get a warrant from the secret Foreign Intelligence Surveillance Court and go to a library or bookstore to find out what books you read or borrow if you are somehow, according to the FBI, connected to "terrorism"?
In the First Amendment Center's "Legal Watch" newsletter (March 11-17), Charles Haynes writes that "a warning sign greets patrons entering all 10 of the county libraries in Santa Cruz, California." It says: "Beware, a record of the books you borrow may end up in the hands of the FBI. And if the FBI requests your records, librarians are prohibited by law from telling you about it." The message to the readers ends: "Questions about this policy should be directed to Attorney General John Ashcroft, Department of Justice, Washington, D.C. 20530."
Librarians -- and bookstore owners -- are also forbidden by this section of the law from telling the press of these visits by the FBI to inform John Ashcroft of what people on the list of suspects are reading. I've checked with the American Library Association and am told that very few other libraries are warning their patrons to be cautious about which books they ask for. Shouldn't the press spread the news of this risk more widely?
And I've seen little in the media about a bill, "The Freedom to Read Protection Act of 2003," introduced in the House by Bernie Sanders (Independent, Vermont) that prevents the government from "searching for, or seizing from, a bookseller or library . . . materials that contain personally identifiable information concerning a patron of a bookseller or library." Under the bill, a higher standard than mere FBI suspicion will be required.
How many of you know the answer Assistant Attorney General Daniel J. Bryant sent Democratic senator Patrick Leahy of Vermont about our expectation of privacy in bookstores and libraries?
"Any [such] right of privacy," says the Justice Department, "is necessarily and inherently limited since . . . the patron is reposing that information in the library or bookstore and assumes the risk that the entity may disclose it to another."
Have you ever assumed that the librarian or bookstore owner has a right to bypass your First Amendment right to read what you choose by telling "another" (the FBI) whether you read, for example, the Voice? Senator Leahy's office made that Justice Department letter available to the press. Have you seen it before now?
In the April 1, 1971, Village Voice ("Investigating the FBI"), I wrote of having received copies of files on private citizens that had been stolen from the Media, Pennsylvania, office of the FBI. So far as I know, the identities of those who "liberated" these documents have never been discovered by the FBI. There were no names or other clues on the papers I received.
There was, however, a statement of purpose by the people who, earlier that year, had broken into the FBI office. They called themselves "The Citizens' Commission to Investigate the FBI" and said: "We believe that citizens have the right to scrutinize and control their own government...The FBI has betrayed its democratic trust, and we wish to present evidence for this claim to the open and public judgment of our fellow citizens."
I was not the only recipient of these files in 1971. Although Attorney General John Mitchell, on March 23, urgently asked the press not to publish any of these purloined documents, the next day the Washington Post printed a front-page story on the Media, Pennsylvania, operation.
The Washington Post said it was running the substance of the stolen files "in the public interest...We believe the American public...needs to think long and hard about whether internal security rests essentially upon official surveillance and the suppression of dissent or upon the traditional freedom of every citizen to speak his mind on any subject, whether others consider what he says wise or foolish, patriotic or subversive."
Having read all the files, and there were many, I wrote in the Voice that "none of these people are under surveillance because they have broken any laws."
For example, an FBI memorandum said of a college senior under surveillance that she "is known to be an inverterate [sic] Marxist revolutionist, and a type of person that should be watched, as she will probably be very active in revolutionary activities."
However, the files also revealed that an FBI informer had talked to this probably dangerous young woman "and received no indication that she was anything other than the average liberal-minded student that is common" among those being watched by the FBI. Nonetheless, she was to be kept under surveillance to see whether, in time, she might qualify for insertion into the FBI's Security Index.
The FBI was also very interested in a professor who, along with his wife and children, lived in a "house that numerous college students visit frequently"; the same professor had been inviting "controversial speakers" to his prestigious liberal arts college before "clearing with others." That tip came from the college's chief switchboard operator ("conceal identity due to position at the school").
More than 30 years later, after September 11, 2001, the FBI once again encouraged the citizenry to be watchful -- to join the war on terrorism through the Web site of the Internet Fraud Complaint Center (IFCC). As reported in the November 15 Washington Post, the hypertext link near the top of the IFCC's home page (www.ifccfbi.gov) reads: "If you have any information regarding the terrorist attack on September 11, please click here." The tips have been streaming in.
On January 8, the front page of the Christian Science Monitor featured a story by Kris Axtman of its Houston bureau: "Political Dissent Can Bring Federal Agents to Door." Her report showed that even though J. Edgar Hoover -- whose name graces the FBI building -- has departed for the great beyond, the FBI has not lost its zeal.
Indeed, Attorney General John Ashcroft is showing at least as much mettle as Attorney General John Mitchell did when he and Hoover were diligently revising the Constitution. Kris Axtman notes that as the calls mount about various un-Americans, "John Ashcroft's post-September policy is that each tip be looked into."
So it came to pass that, in San Francisco, when 60-year-old retired phone company worker Barry Reingold answered the intercom at his residence, two FBI agents announced they were coming up. Earlier, at the gym where Reingold works out, the talk had been about the dread Osama bin Laden, and one of Reingold's fellow gym members had told the FBI about a suspicious turn the conversation had taken.
As Reingold recalled his part of the dialogue at the gym, he had said of the notorious fugitive, "Yeah, he's horrible and did a horrible thing, but Bush has nothing to be proud of. He is a servant of the big oil companies, and his only interest in the Middle East is oil."
After questioning George W. Bush's critic, the FBI agents appeared to clear Reingold of any likely terrorist predilections; but then, after the door closed, Reingold heard one of the agents say, in the corridor, "But we still need to do a report." Mr. Reingold is now a person under suspicion in the FBI's files.
The Christian Science Monitor also told of A.J. Brown, a student at Durham Technical Community College in North Carolina. Two Secret Service agents and a Raleigh police officer knocked at her door, telling her they had a tip she had "un-American activity" in her apartment. Knowing her Constitutional rights, she found out they didn't have a search warrant and refused to let them in. But she answered their questions for 40 minutes outside her door.
From the doorway, which was open, her vigilant visitors, as reported by Kris Axtman, saw "a poster of George W. Bush holding a noose. It read: 'We hang on your every word.' " The message was a reminder of Texas governor Bush's proud record as the nation's chief executioner. The noose was not around his neck.
Since, under Ashcroft's USA Patriot Act, the various intelligence agencies are encouraged to exchange information with one another, I expect A.J. Brown and the noose in her apartment are now in the files of the FBI and the CIA.
Ashcroft has further expanded the FBI's powers by reviving the disgraced COINTELPRO operation that, from 1957 to 1971, monitored, infiltrated, and disrupted many "suspicious" religious and political groups. After COINTELPRO was denounced by Congress, certain restrictions were placed on such FBI initiatives. Ashcroft has lifted those restrictions. The December 3 Wall Street Journal noted that Justice Department regulations no longer "require agents to show probable cause that a crime was afoot before spying on political or religious organizations." Or individuals.
Before you answer the door, check what's on your walls.
Nat Hentoff is a columnist for the Village Voice, NEA Newspapers Syndicate, Legal Times, and Editor&Publisher. His most recent books are "Living the Bill of Rights" (University of California, 1999) and "The Nat Hentoff Reader" (Da Capo Press, 2001).