State Secrets, State Secrets Are No Fun
Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.
That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.
That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.
Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Preventive Detention: What Would Thomas Jefferson Do?
By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects — Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force — showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].
According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are — sadly — “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney's preventive detention scheme] might be crafted with bipartisan support.”
…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides — between Tom Coburn and Russ Feingold — then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.
No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.
All that such a policy does is to move the act of judging back one level — and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.
It is no improvement to shift the fundamental problem of justice to a different location — out of open courtrooms, out of review, out of established legal tradition — and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.
But oddly, Professor Chesney is actually right in one respect:
The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.
Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.
True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.
Civil Liberties and President Barack W. Bush?
It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list. Indeed, they probably weren’t even on the list. Candidate Barack Obama promised “change” when he took office, and change we have gotten. The name of the president is different.
Alas, the policies are much the same. While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.
Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.
It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?
The answer depends on what it means to act like Mr. Bush.
As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.
“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”
But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.
“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”
The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us. The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.
Filed under: Foreign Policy and National Security; Government and Politics; Law and Civil Liberties
Fixing Detention
The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.
This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.
This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.
The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Cheney vs. Obama: Tale of the Tape
In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.
The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.
However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Politicians in Thrall to Terrorism
Doug Bandow aptly finds the debate about Guantanamo detainees surreal. For my part, I see it as an exhibition of politicians put “on tilt” — and unwittingly executing the terrorism strategy.
The leadership of both parties appears not to understand that terrorism is designed to elicit self-injurious overreaction. Fear-mongering is a cog in the overreaction machine.
If they did understand this, they would see it as both a civic duty and politically rewarding leadership to exhibit bravery. Messages of indomitability and calm are the appropriate strategic response to terrorism.
Instead, what we have is a bidding war about who can be the most fearful of Guantanamo detainees — a group that is well under control itself and whose transportation and housing in U.S. prisons is entirely manageable.
Both parties are playing to a “base” of caterwauling Islamophobes while the bulk of the American public looks on bewildered and disappointed. Meanwhile, people around the world see that terrorism is a great way to express opposition to U.S. power and U.S. policies. Oops.
Who’s Scared of the Guantanamo Inmates?
Many debates in Washington seem surreal. One often wonders why anyone considers the issue even to be a matter of controversy.
So it is with the question of closing the prison in Guantanamo Bay. Whatever one thinks about the facility, why are panicked politicians screaming “not in my state/district!”? After all, the president didn’t suggest randomly releasing al-Qaeda operatives in towns across America. He wants to put Guantanamo’s inmates into American prisons.
Notes an incredulous Glenn Greenwald:
we never tire of the specter of the Big, Bad, Villainous, Omnipotent Muslim Terrorist. They’re back, and now they’re going to wreak havoc on the Homeland — devastate our communities — even as they’re imprisoned in super-max prison facilities. How utterly irrational is that fear? For one thing, it’s empirically disproven. Anyone with the most minimal amount of rationality would look at the fact that we have already convicted numerous alleged high-level Al Qaeda Terrorists in our civilian court system (something we’re now being told can’t be done) – including the cast of villains known as the Blind Shiekh a.k.a. Mastermind of the First World Trade Center Attack, the Shoe Bomber, the Dirty Bomber, the American Taliban, the 20th Hijacker, and many more — and are imprisoning them right now in American prisons located in various communities.
Guantanamo may be a handy dumping ground for detainees, but it has become a symbol of everything wrong with U.S. anti-terrorism policy. Closing the facility would help the administration start afresh in dealing with suspected terrorists.
The fact that Republicans are using the issue to win partisan points is to be expected. But the instant, unconditional Democratic surrender surprises even a confirmed cynic like me.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
The Jurisprudence of Detention: Definitions and Cases
Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.
Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.
But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
State Secrets Case Proceeds
A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees. (H/T SCOTUSBlog)
The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured. The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.
This presents a split in federal circuit rulings on the State Secrets Privilege. The Fourth Circuit held that the Privilege could bar a civil suit entirely. This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds. “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”
As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability. All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Does Transparency Inspire Terrorism?
The debate over the Obama administration’s release of the torture memos took an important turn during the past week, as reflected in discussions on the Sunday morning shows.
The economy was the lead story on Fox News Sunday, but in the second segment Chris Wallace led his questioning of Senator Kit Bond (R-MO) as follows:
The Pentagon now says that it’s going to release hundreds of photos of alleged abuse of detainees by U.S. personnel – this, after, of course, the release of the interrogation memos. Senator Bond, how serious is the threat of a backlash in the Middle East and the recruitment of more terrorists, possibly endangering U.S. soldiers in that part of the world?
Revelation! The idea that abusive practices on the part of the United States would draw people to the side of its enemies.
In the media, most of the debate up to now has centered on the tactical question of whether torture works, and to some degree the moral dimension. (Here’s David Rittgers on the former and Chris Preble on the latter.)
There’s an ineluctable conclusion from understanding that torture drives recruitment which endangers our soldiers: It is strategic error to engage in abusive practices. Abuse on the part of the United States adds heads to the hydra.
But wait. Wallace’s question may imply that it is release of the photos – not commission of the underlying offenses – that risks causing a backlash. This cannot be.
Given the governments they’ve long experienced, people in the Muslim and Arab worlds will generally assume the worst from what they know – and assume that even more than what they know is being hidden. Transparency about U.S. abuses cuts against that narrative and confuses the story that the United States is an abuser akin to the governments Arabs and Muslims have known.
Abusive practices create backlash against the United States. Transparency about abuses after the fact will dispel backlash and muddy the terrorist narrative about the United States and its role in the Middle East.
As the question turns to prosecution of wrongdoing by U.S. officials, such as lawyers who warped the law beyond recognition to justify torture, transparent application of the rule of law in this area would further disrupt a terrorist narrative about the United States.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
“Soft” Interrogation Yields the Best Results
My colleague Chris Preble sketches out some of the moral pitfalls that come with authorizing torture in his post. Beyond that, history shows that utilitarian claims that torture has enhanced our safety are also mistaken.
While torture can in some instances provide valid intelligence, it can also produce false information motivated only by a desire to end suffering. Successful interrogators from World War II to the modern day have used rapport and psychology, not brutality, to get inside the heads of their enemies.
The Air Force interrogator who helped bag Abu Musab al Zarqawi, writing under the pseudonym Matthew Alexander, says that the difference between an interrogator and a used car salesman is that the interrogator has to abide by the Geneva Conventions. No torture there, and a good read to boot.
This theme is echoed in Kyndra Rotunda’s book Honor Bound:
I knew one CITF agent and one FBI agent who were Muslims, and both knew how to coax the truth from detainees’ lips. One word captures their effective, secret ingredient to successful interrogations – patience. They each spent hours visiting with the detainee, sharing tea, bringing gifts of dried fruits, and talking endlessly about family, Allah, and the Quran.
This should come as no surprise, since it is a repackaging of the techniques of World War II interrogator Hanns Scharff, “Master Interrogator of the Luftwaffe.” Scharff treated downed Allied pilots humanely, gaining their trust and sympathy while gleaning significant information about Allied air power and advance warning of the D-Day landing. The Allies wanted to prosecute him after the war for interrogating their pilots so effectively, but dropped the charges when they couldn’t substantiate him so much as raising his voice. He came to the United States after the war and did mosaic art work at Walt Disney World.
So color me unsurprised when a former FBI supervisory agent says that we gained actionable intelligence by traditional interrogation techniques, and that torture backfired on us.
The release of memoranda authorizing torture will help prevent the U.S. from ever traveling this dark path again. The U.S. has consistently taken the moral high ground in armed conflicts, contrasting our behavior with the savagery our enemies engaged in for decades. The historical record shows that mercy, not might, is the key to successful interrogation.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Bob McDonnell Wants to Scare You and Take Your Money
Though I’m not a Virginia resident or voter, nor a donor to politicians, Virginia gubernatorial candidate Bob McDonnell (whose party affiliation I’m not aware of) has added me to his email list. His name is similar to a past roommate, and that affinity has caused me to open more of his emails than I ordinarily would.
Today’s is worth writing about: It’s a political candidate transparently trying to scare voters and use their fear for fundraising.
Dear Jim,
Terror suspects could be headed to Virginia…
With the closing of the detention center at Guantanamo Bay the federal government must find new locations in which to house and try the roughly 240 terrorist suspects currently held 90 miles from our shores. Recent news reports indicate that the Department of Justice is considering transferring a number of the detainees to the Commonwealth of Virginia. One specific location: Alexandria. And other Virginia locations could be possibilities as well.
There are security details to be worked out when prisoners are transferred out of Guantanamo Bay, but the prisoners themselves are not dangerous as such. They’re prisoners, and they will always be under heavy guard. Terrorists are not radioactive, and they do not have lasers built into their eyes.
The problems with housing prisoners in the past have been over-the-top security precautions that make a great show but don’t necessarily meet actual security problems associated with housing terror suspects.
Bills have been introduced to bar detainees from being transferred to various states.
A precious few Americans have exhibited cool in this fear-of-detainees brouhaha. Alexandria Sheriff Dana A. Lawhorne is quoted in this Washington Post article, at least saying “he would do what he can: ‘You can’t run the other way when your country calls.’”
But McDonnell, the politician seeking a prominent leadership position in the state, would “lead” by pretending that captured terrorists are too big a security risk for Virginia. It’s shameful fear-mongering meant to capitalize on the ignorance and weakness of Virginians who don’t understand terrorism. The only links in the text of the email are to the fundraising page on McDonnell’s Web site.
McDonnell exhibits leadership malpractice with this kind of campaigning.
Filed under: Foreign Policy and National Security; Government and Politics
TLJ: Holder Advocates Some Constitutional Principles
I’m a long-time reader and fan of TechLawJournal. Dogged reporter David Carney produces an amazing amount of content about technology-related goings-on in Washington, D.C. and the courts. Subscription information is here.
I also appreciate his editorial style, which often betrays a dose of concern for civil liberties and healthy skepticism about power. A wonderful example follows, reprinted with permission:
Holder Advocates Some Constitutional Principles
Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in “our current struggle against international terrorism”.It was a plea for adherence to Constitutional principles. However, it was as significant for what he said — about detention of people in places like Guantanamo Bay — as for what he did not say — about interception of communications and seizure of data.
He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.
But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.
Holder (at right) said, “And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes.”
He said that “we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger — it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”
This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.
He did make one statement that may pertain to electronic surveillance and data. He said that “many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars”.
He did not reference the state secrets privilege, or the government’s assertion of it in legal proceedings involving warrantless wiretaps.
On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA’s warrantless wiretap program.
The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.
The Electronic Freedom Foundation (EFF) stated in a release that “These are essentially the same arguments made by the Bush administration”.
This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.
Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder’s speech that “It’s disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like ‘1984′ than 2009.”
Black continued that “President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents.”
“The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured”, said Black. “But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights.”
The Problem of Guantanamo
The Constitution obviously does not leave Americans helpless in fighting against those who wish them ill. But it also sets standards of conduct that should not — indeed, cannot — be carelessly tossed aside.
The prison at Guantanamo Bay has become such an international symbol of the U.S. abandoning its principles because it reflects an anti-terrorism policy gone badly awry. First, the Bush administration was both callous and careless in imprisoning people, even paying unreliable tribal allies for captives. Second, the U.S. government created no effective and objective truth-determining process to assess guilt. Third, Washington employed torture, violating both domestic and international law.
No doubt dangerous terrorists have been incarcerated at Gitmo. But so too have many innocent people. Indeed, the claims of former State Department Chief of Staff Larry Wilkerson are particularly sobering:
Lawrence B. Wilkerson, the former chief of staff to Secretary of State Colin Powell, admitted today that of the approximately 800 detainees held at Guantanamo Bay since the controversial detention center opened, only “two dozen or so” were actually terrorists. Wilkerson told the Associated Press today that “there are still innocent people there,” and that “some have been there six or seven years.”
Wilkerson made other comments earlier in the week in an internet posting entitled “Some Truths About Guantanamo Bay.” In that posting he said that “several in the US leadership became aware of the lack of proper vetting very early on and thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.”
Wilkerson also claimed that then-Secretary Powell and Richard Armitage were pressuring for the repatriation of as many detainees as possible, and that former Defense Secretary Donald Rumsfeld and Vice President Dick Cheney were unphased by the fact that “among the detainees was a 13 year old boy and a man over 90,” standing in opposition to returning detainees.
Even if Wilkerson exaggerates–and he has been a credible witness so far–he points to the price America has paid for failing to live up to its principles. The U.S. has locked up many who were neither terrorists nor otherwise dangerous. Doing so undoubtedly has helped turn some people in and out of Gitmo towards violence against America. And mistreating the innocent has badly sullied America’s reputation as a shining city upon a hill.
Confronting terrorism will never be easy. But violating America’s principles is no way to defend the America in which we all claim to believe.
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