Matt Taibbi / Rolling Stone & Washington Post & David Cole / The New York Review of Books – 2011-12-12 01:08:21
Indefinite Detention of American Citizens:
Coming Soon to Battlefield USA
Matt Taibbi / Taibblog, Rolling Stone Magazine
(December 11, 2011) — There’s some disturbing rhetoric flying around in the debate over the National Defense Authorization Act, which among other things contains passages that a) officially codify the already-accepted practice of indefinite detention of “terrorist” suspects, and b) transfer the responsibility for such detentions exclusively to the military.
The fact that there’s been only some muted public uproar about this provision (which, disturbingly enough, is the creature of Wall Street anti-corruption good guy Carl Levin, along with John McCain) is mildly surprising, given what’s been going on with the Occupy movement. Protesters in fact should be keenly interested in the potential applications of this provision, which essentially gives the executive branch unlimited powers to indefinitely detain terror suspects without trial.
The really galling thing is that this act specifically envisions American citizens falling under the authority of the bill. One of its supporters, the dependably unlikeable Lindsey Graham of South Carolina, bragged that the law “basically says … for the first time that the homeland is part of the battlefield” and that people can be jailed without trial, be they “American citizen or not.” New Hampshire Republican Kelly Ayotte reiterated that “America is part of the battlefield.”
Officially speaking, of course, the bill only pertains to:
“a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
As Glenn Greenwald notes, the key passages here are “substantially supported” and “associated forces.” The Obama administration and various courts have already expanded their definition of terrorism to include groups with no connection to 9/11 (i.e. certain belligerents in Yemen and Somalia) and to individuals who are not members of the target terror groups, but merely provided “substantial support.”
The definitions, then, are, for the authorities, conveniently fungible. They may use indefinite detention against anyone who “substantially supports” terror against the United States, and it looks an awful lot like they have leeway in defining not only what constitutes “substantial” and “support,” but even what “terror” is. Is a terrorist under this law necessarily a member of al-Qaeda or the Taliban? Or is it merely someone who is “engaged in hostilities against the United States”?
Here’s where I think we’re in very dangerous territory. We have two very different but similarly large protest movements going on right now in the Tea Party and the Occupy Movement. What if one of them is linked to a violent act? What if a bomb goes off in a police station in Oakland, or an IRS office in Texas? What if the FBI then linked those acts to Occupy or the Tea Party?
You can see where this is going. When protesters on the left first started flipping out about George Bush’s indefinite detention and rendition policies, most people thought the idea that these practices might someday be used against ordinary Americans was merely an academic concern, something theoretical.
But it’s real now. If these laws are passed, we would be forced to rely upon the discretion of a demonstrably corrupt and consistently idiotic government to not use these awful powers to strike back at legitimate domestic unrest.
Right now, the Senate is openly taking aim at the rights of American citizens under the guise of an argument that anyone who supports al-Qaeda has no rights. But if you pay close attention, you’ll notice the law’s supporters here and there conveniently leaving out those caveats about “anyone who supports al-Qaeda.” For instance, here’s Lindsey Graham again:
“If you’re an American citizen and you betray your country, you’re not going to be given a lawyer … I believe our military should be deeply involved in fighting these guys at home or abroad.”
As Greenwald points out, this idea — that an American who commits treason can be detained without due process — is in direct defiance of Article III, Section III of the Constitution, which reads:
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
This effort to eat away at the rights of the accused was originally gradual, but to me it looks like that process is accelerating. It began in the Bush years with a nebulous description of terrorist sedition that may or may not have included links to Sunni extremist groups in places like Afghanistan and Pakistan.
But words like “associated” and “substantial” and “betray” have crept into the discussion, and now it feels like the definition of a terrorist is anyone who crosses some sort of steadily advancing invisible line in their opposition to the current government.
This confusion about the definition of terrorism comes at a time when the economy is terrible, the domestic government is more unpopular than ever, and there is quite a lot of radical and even revolutionary political agitation going on right here at home. There are people out there — I’ve met some of them, in both the Occupy and Tea Party movements — who think that the entire American political system needs to be overthrown, or at least reconfigured, in order for progress to be made.
It sounds paranoid and nuts to think that those people might be arrested and whisked away to indefinite, lawyerless detention by the military, but remember: This isn’t about what’s logical, it’s about what’s going on in the brains of people like Lindsey Graham and John McCain.
At what point do those luminaries start equating al-Qaeda supporters with, say, radical anti-capitalists in the Occupy movement? What exactly is the difference between such groups in the minds (excuse me, in what passes for the minds) of the people who run this country?
That difference seems to be getting smaller and smaller all the time, and such niceties as American citizenship and the legal tradition of due process seem to be less and less meaningful to the people who run things in America.
What does seem real to them is this â€œbattlefield earthâ€ vision of the world, in which they are behind one set of lines and an increasingly enormous group of other people is on the other side.
Here’s another way to ask the question: On which side of the societal fence do you think the McCains and Grahams would put, say, an unemployed American plumber who refused an eviction order from Bank of America and holed up with his family in his Florida house, refusing to move? Would Graham/McCain consider that person to have the same rights as Lloyd Blankfein, or is that plumber closer, in their eyes, to being like the young Muslim who throws a rock at a U.S. embassy in Yemen?
A few years ago, that would have sounded like a hysterical question. But it just doesn’t seem that crazy anymore. We’re turning into a kind of sci-fi society in which making it and being a success not only means getting rich, but also means winning the full rights of citizenship. I hope I’m wrong, but I don’t see this ending well.
US Denies Gitmo Discipline Block Violates Human Rights
WASHINGTON (December 9, 2011) — For nearly ten years, Guantanamo Bay’s military prison has been an international symbol of US lawlessness and a recruiting boon for al-Qaeda. If Congress gets its way, “Gitmo” will stay that way for the indefinite future. Both houses of Congress have approved versions of the National Defense Authorization Act that would make it virtually impossible to close Guantanamo. Lawyers contend that Gitmo’s Camp Five violates the Geneva Conventions.
US Military Denies Claims that Guantanamo Disciplinary Block Violates Geneva Conventions
SAN JUAN, Puerto Rico (December 9, 2011) — US military officials at Guantanamo Bay are defending conditions in a disciplinary block known as “Five Echo,” taking the unusual step Friday of releasing photos of a section of the jail not typically shown to outsiders.
Lawyers for detainees say the cells are too small, toilets inadequate, lights overly bright and its air foul, and they call it inhumane to keep detainees there for 22 hours a day, especially when they have not been convicted of a crime.
David Remes, a Washington-based attorney who represents three prisoners who have been held in Five Echo, said this week that the disciplinary unit appears to violate the Geneva Conventions. “Five Echo is really a throwback to the bad old days at Guantanamo,” Remes said.
Guantanamo Bay officials said Five Echo is by its nature a worse place to be imprisoned than in the communal blocks where most detainees at Guantanamo are now held, but the military disputed the assertions that its conditions violate the Geneva Conventions.
“It is safe, humane and meets all the regulations,” Army Col. Donnie Thomas, commander of the guard force at the prison, said of Five Echo during a telephone interview from the US base in Cuba.
The photos released to The Associated Press show empty cells with steel, pale green walls and a translucent, rectangular window near the ceiling covered in steel mesh. The military said the cells have about half the space of those in nearby Camp Five. The cells have a squat toilet in the floor, instead of a standard prison toilet found elsewhere in the prison. Lawyers said that they did not believe any photos of the unit had been released previously and that the military has been secretive about the section of the prison.
Guantanamo, which is now approaching its 10th anniversary as a detention center for men suspected of links to al-Qaida and the Taliban, holds about 170 men in three camps. President Barack Obama vowed to close the prison upon taking office but has been thwarted by Congress, which has blocked efforts to move detainees to the US
The 15 most notorious prisoners, including the self-proclaimed mastermind of the 9/11 attack, are held in a top-secret section known as Camp Seven. Little is known about that area and even its location on the base is classified.
About 80 percent of the detainees are held in Camp Six, where they are free to congregate with each other in a communal setting for 20 hours a day, and they have access to games, classes and 20 channels of cable television. The military has credited creation of this communal block for a sharp drop in prisoners’ protests, hunger strikes and assaults on guards. Camp Five is now largely used for detainees who attack a guard or otherwise violate the rules in Camp Six and are deemed “noncompliant.” It has capacity for about 100 prisoners but is less than half full.
Five Echo originally was created in 2007 as an overflow disciplinary section, but now is used as an “extension” of Camp Five, Thomas said. Thomas declined to disclose the criteria for the use of Five Echo. He said it was empty Thursday, the day of the phone interview, but added that he could resume using it at any time at his discretion. He declined to say when it last held detainees.
Five Echo has not been included in media tours of the Guantanamo jail provided for members of the media, and officials have previously provided little information about the unit.
Remes, a lawyer for a number of prisoners, said he drew a diagram and collected other details following a meeting with one of his clients, a Saudi national and British resident named Shaker Aamer who has been held in Five Echo. But he said the notes were deemed classified by a government review team and he is not permitted to release them.
Ramzi Kassem, a lawyer and law professor who also represents Aamer, said the detainee described abysmal conditions in Five Echo. He said the squat toilet is difficult to use, there are foul odors, bright lights shine on detainees and air conditioners keep it extremely cold.
“It is decrepit, filthy and disgusting. Those are the words he used to describe it,” said Kassem, a professor of law at the City University of New York.
Aamer also told him there is not enough room in Five Echo for the Muslim prisoners to do their prayers. Detainees in the block are allowed two hours a day out of the cells for recreation. Kassem said conditions are akin to those of a Supermax prison in the United States.
Thomas denied the lights are overly bright and said the toilets are adequate and conditions overall are humane. “Quite frankly, detainees make the determination where they live,” he said. “If they are compliant they live in Camp six. If they are noncompliant they live in Camp 5.”
Copyright 2011 The Associated Press. All rights reserved.
Gitmo Forever? Congress’s Dangerous New Bill
David Cole / The New York Review of Books Blog
NEW YORK (December 8, 2011) — For nearly ten years now, Guantanamo Bay’s military prison has been an international symbol of United States lawlessness and a recruiting boon for al-Qaeda. If Congress gets its way the facility will stay that way for the indefinite future. Both houses of Congress have now approved versions of the National Defense Authorization Act (NDAA), a bill that would require the use of military detention and military courts for suspected terrorists and make it virtually impossible to close Guantanamo.
There are many reasons to object to the bill’s detention provisions. They will foreseeably mandate arbitrary detention, and needlessly subject persons to military trials of doubtful legality that selectively impose second-class justice on foreign nationals. But even if you put all such human rights concerns aside, the provisions will be disastrous for national security.
This is why the bill has already generated public opposition from FBI Director Robert Mueller, Secretary of Defense Leon Panetta, CIA Director David Petraeus, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and DOJ National Security Division head Lisa Monaco. And yet it is likely to become lawâ€“it is now in a “conference committee” to work out differences between the Senate and House versions — unless President Obama carries out his threat to veto it.
Why is Congress so intent on this law? Everyone who has had to represent the United States to the outside world has acknowledged that Guantanamo — and the military detention system operated there — are a disaster for our foreign policy and national security. That’s why President Bush, Colin Powell, Condoleezza Rice, Robert Gates, and John McCain all recognized that the United States would be better off with the prison closed.
As former Navy General Counsel Alberto Mora told the Senate Armed Services Committee in 2008, “there are serving US flag-rank officers who maintain that the first and second identifiable causes of US combat deaths in Iraq — as judged by their effectiveness in recruiting insurgent fighters into combat — are respectively the symbols of Abu Ghraib and Guantanamo.”
President Obama himself — who came to office with a pledge to close the prison within one year — has said that “the existence of Guantanamo likely created more terrorists around the world than it ever detained.”
But a majority of lawmakers — including members of both parties — have placed “not in my backyard” politics above the judgements of national security officials. They are unwilling to contemplate the prospect of moving a single Guantanamo prisoner to the United States, or to risk any chance of recidivism from those who might be released elsewhere. And they also seem to think they are better situated than the executive branch to decide how terrorist suspects should be detained and tried.
In previous years, without Congressional intrusion, the military was able to reduce the prison population at Guantanamo from a high of 775 in the early 2000s to less than 200 in 2010. President Bush himself released over 500 detainees, at a time when Congress wisely left such decisions to the Commander-in-Chief. But since then, legislative restrictions on transfer decisions have blocked the release of any of the remaining 171 prisoners, despite the fact that 89 of them — more than half — have been officially cleared by a joint review team comprised of the military, the CIA, the FBI, and the NSC.
Extending on these restrictions, the House version of the new NDAA bars the transfer or release of any Guantanamo detainees into the United States, while both the Senate and House bills effectively bar their transfer to a foreign country — where more than 600 detainees have already been sent.
A transfer to a foreign nation would be authorized only if the Secretary of Defense is able to certify that the recipient nation can ensure “that the individual cannot engage … in any terrorist activity,” and agrees in advance to share full information with the United States regarding the individual and his associates. The apparent rationale is to prevent former inmates from engaging in terrorism against the US. But Defense Department General Counsel Jeb Johnson has said it is nearly impossible to provide such assurances. And the transfer provisions apply even to detainees who have been conclusively determined to pose no threat.
These arbitrary restrictions will prove staggeringly costly. The McClatchy News Service has estimated that it costs approximately $800,000 a year to house an inmate at Guantanamo. That means we are now paying more than $70 million a year just to house the 89 detainees whom the executive has determined no longer need to be held at all. The new legislation would effectively make this state of affairs permanent, forcing the government to spend more money to make the country less safe.
The bill would also require the use of military detention rather than civilian arrest for terrorist suspects thought to be associated with al-Qaeda or the Taliban, thereby gravely interfering with the president’s discretion to arrest and prosecute terrorists in the civilian criminal justice system.
A provision in the Senate version of the bill requires military custody for noncitizens alleged to be part of al-Qaeda, the Taliban, or “associated forces” who have participated in an attack or planned attack against the United States barring a specific waiver from the Secretary of Defense, Secretary of State, and Director of National Intelligence. The House bill imposes similar limits, banning federal court trials for any foreign national accused of terrorism who could in theory be tried in a military commission.
Military detention and trial are already options for such individuals under current law, so these provisions would in no way expand the tools available to protect us. To the contrary, they would limit the president’s options by requiring military detention and trials even where better results could be obtained using criminal prosecution in ordinary courts. The Bush and Obama administrations have prosecuted well over one hundred people for terrorist crimes in US criminal courts, many of them associated with al-Qaeda, and have in many cases obtained valuable information from the defendants.
The NDAA bill would block such arrests and prosecutions, even in the United States, unless the FBI could get the Defense Secretary, Secretary of State, and Director of National Intelligence together to agree that a waiver should be granted. Moreover, such restrictions on civilian criminal trials are likely to lead many of our allies to refuse to extradite suspects to the United States for trial.
In short, Congress’s bill is a disaster on pure security grounds — even without regard to human rights concerns. It would render the United States less able to respond to the threats we face, and force us to spend money continuing to imprison persons who have been found to pose no threat.
Under current law, the executive branch has multiple options for responding to Al Qaeda suspects. It can try them in civilian courts, and has done so successfully on many occasions. It can try them before military commissions, a largely untested procedure that thus far has provided nothing but headaches for the administration and propaganda victories for the enemy.
And it can hold them in military detention, and release them when it determines that their detention is no longer necessary. But if Congress has its way, the administration will have fewer options, not more, and will be less equipped to keep us safe. Unless the conferees remove these restrictions, President Obama has no choice but to carry out his veto threat. Our national security requires no less.
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