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Democracies must defend themselves. Democracies are entitled to try officers and soldiers of enemy forces for war crimes. But it is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis. Ill-conceived, rushed legislation is passed granting excessive powers to executive governments which compromise the rights of individuals beyond the exigencies of the situation. Often the loss of liberty is permanent….
Lord Justice Johan Steyn, 23 November 2003, as quoted in the play Guantanamo: Honor Bound to Defend Freedom, by Victoria Brittain & Gillian Slovo.
Democracy dodged a bullet when the Supreme Court rejected the government’s most aggressive positions in Rasul, Hamdi, and Padilla, but this assault on our most basic freedoms, heralded by our Justice Department as a “new paradigm” or “new thinking,” is far from over. As an organization whose members proudly call themselves “liberty’s last champions,” we have a special obligation to act.
It is time to mobilize lawyers effectively to restore the rule of law for detainees at Guantanamo and get the truth about how they were interrogated. It is time to fight in the halls of Congress inevitable efforts by the Bush administration to win by legislation what they lost in Hamdi and Rasul — authority to declare American citizens enemy combatants and seize them indefinitely without meaningful review by a court, authority to deprive them of counsel so that they can be more easily broken down during incommunicado interrogation (actually one of the government’s arguments in Padilla), and authority to set up a military tribunal system without the procedural due process safeguards we expect even in our military justice system.
And it is time, as Anthony Lewis suggested recently in the New York Times, to demand an investigation of torture and inhumane treatment of prisoners in Iraq and Afghanistan by a joint committee of Congress, or an independent counsel, to do what investigators of official crimes have done since Nuremberg: apply the principle of command responsibility and work up the chain to the source of misconduct, wherever that leads. Nothing less, Lewis rightly suggests, will restore America’s good name and its moral sense of self. It is also the only way to accomplish what even the Defense Department claims to want: to find and punish those responsible, and to prevent this from recurring.
None of this will be easy, especially if there is soon another attack within the United States by a terrorist group, or if the government’s monumental intelligence failures (the miscommunication and adversarial competition between and within agencies, the “group think,” and the incompetence) is twisted into an excuse to make intelligence gathering easier by further gutting civil liberties. But our resolve to fight can be strengthened by taking a true measure of our peril: a realistic, objective look at what government lawyers, and the president himself, mean when they say our criminal justice system needs “new thinking” or a “new paradigm” to wage the war on terrorism.
First, let’s consider the “new paradigm” created for the hundreds of suspected foot soldiers for the Taliban who were swept up in Afghanistan and elsewhere and sent to Guantanamo Bay. Ordinarily, the United States would follow the Third Geneva Convention by establishing a “competent” tribunal to determine if these individuals were prisoners of war, innocents, or unprivileged belligerents, such as members of a terrorist group, like al-Qaeda (unprivileged belligerents are not entitled to combatant immunity, and therefore are not necessarily entitled to treatment as prisoner of war under the Geneva Conventions). This is not a mysterious process. In the 1991 Gulf War, the U.S. military held 1,196 such hearings before military tribunals, and discovered, incidentally, that 75 percent of the prisoners were innocent civilians.
This time, over the objections of Secretary of State Colin Powell, and his legal counsel William H. Taft IV, who warned that failure to follow the Geneva Convention at Guantanamo would “reverse over a century of U.S. policy and practice…and undermine the protection of the law of war for our troops,” President Bush sided with his counsel, Alberto Gonzales, who argued that the “nature of the new war” on terrorism places such a premium on getting information from captured terrorists quickly, that “[t]his new paradigm” makes the restrictions of the Geneva Convention for prisoners of war (just name, rank and serial number) “obsolete.”
So for more than two years the government has maintained that the Guantanamo detainees are “unlawful combatants” (a term found nowhere in the Third Geneva Convention), dragged its feet about setting up a tribunal system to determine officially their status, and conducted non-stop interrogations using aggressive techniques for extracting information not contained in traditional military manuals that required special approval from Defense Secretary
Rumsfeld — justified, again, as more “new paradigm” thinking. Were there interrogation abuses in Afghanistan and at Guantanamo? One certainly has to wonder whether we are getting the truth about these matters. As Clive Stafford Smith points out, in the first months of Guantanamo detention, 32 suicide attempts were reported. Then they seemed to stop. But it turns out they didn’t; they were just reclassified as “Manipulative Self-Injurious Behavior” (the “new paradigm” obviously requires new, Orwellian language). Did the “new” techniques produce reliable information that can be properly used against detainees? We know similar techniques produce false confessions in America’s jails and police precincts, where people have lawyers, phone calls, and access to courts. Indeed, a recent Newsweek story by Michael Isikoff documents that an al-Qaeda member subjected to the most extreme interrogation methods did produce questionable information and has reportedly since recanted. (Ibn al-Shaykh al-Libi was supposedly the “crucial source” for the administration’s claims that Iraq had aided al-Qaeda in the development and deployment of “poisons and gases.” Some officials now suspect that al-Libi had been subjected to or threatened with extreme interrogation methods, causing him to tell his captors what he thought they wanted to hear.)
If these issues cannot be effectively raised when the government gets around to conducting military tribunals to determine status, much less criminal charges, then those proceedings will be properly rejected around the world as illegitimate. Only the continued valiant efforts of American military lawyers, the pro bono assistance of civilian criminal lawyers, and the determination of the media to get the real story will breathe some true democratic life into the military tribunal system. If not for the press firestorm over prison abuses at Abu Ghraib, one has to wonder whether the “new paradigm” legal memos about Guantanamo interrogation methods would have ever been disclosed.
The “new paradigm” legal memos from the Justice Department making arguments about how an American interrogator could defend against torture charges if he or she used techniques with the general, but not specific, intent to cause “severe physical or mental pain and suffering,” make very amusing reading for the criminal practitioner (would government lawyers really acknowledge the viability of such defenses in one of our cases?) were it not for the chilling conduct being suggested. The most troubling question about the memos is not their legal validity (few have risen to defend them now that they are public) but to what extent they were written to justify actions that had already taken place, or influenced others in the chain of command who have abused prisoners in Iraq, Afghanistan, and Guantanamo.
Unless a special committee of Congress, such as the 9/11 Commission, or a special prosecutor is appointed, these questions won’t get satisfactory answers. Secretary Rumsfeld and Vice-President Cheney, who consistently deflect criticism about the Abu Ghraib prisoner abuse by promising, “Watch how a democracy responds,” ought to take this suggestion.
Finally, the “new paradigm” reasoning rejected by the Supreme Court in Hamdi — that the executive as Commander in Chief has a “blank check” to label an American citizen an “enemy combatant” and keep him incommunicado beyond the reach of the courts, or contact with a lawyer, indefinitely — is by no means dead. “New paradigm” advocates probably have a better chance of succeeding right now in Congress than the Bush Administration did in the Supreme Court. They will argue this war on terrorism is different than anything America has faced before and our traditional criminal justice system cannot efficiently or safely bring terrorists to justice. The mechanisms available to protect classified information or satisfy rights to confrontation and due process in prior national security cases just won’t work. Lives will be lost. Our beleaguered intelligence gathering system will be unduly hamstrung. They will probably propose a system similar to the diplock courts set up in Ireland by the British to deal with the IRA, a handy model of a democracy setting up special terrorism courts.
I don’t think most Americans would find the diplock court system very congenial. Twenty years ago, I represented Eamon Meehan on charges he was running guns to the IRA from America. I learned that before fleeing to America, Eamon was “lifted” in 1969 and tried in a diplock court. He was accused of being a member of the IRA and killing someone in Belfast. The witnesses against him testified behind a curtain and didn’t have to give their names. When the murder took place, Eamon was getting married in another part of Belfast to a Protestant girl (lots of witnesses). He was convicted with dispatch and sent to Long Kesh prison, a detention center similar to Guantanamo, where his interrogation was conducted using some of the “new methods” Rumsfeld has approved — sleep deprivation, dietary manipulation, isolation, hooding during transport and interrogation that last up to 20 hours, stress positions, nakedness, and dogs. I remember thinking at the time such a process could not take place in America, that we had learned a fundamental lesson from the Japanese internment camp fiasco– I was young, wrong and naïve.
The “new paradigm” and “new thinking” about terrorism undermines old fashioned conservative values — Barry Goldwater (“extremism in defense of liberty is no vice” ) would surely have disapproved. The administration knows this is true and tries to disguise it, and confuse the issues. That’s why the USA-Patriot Act is called the “Patriot Act.” That’s why Secretary Rumsfeld consistently says Guantanamo detainees are being treated as prisoners of war even though they are not, and that the Geneva Convention doesn’t apply to them but we are treating them as though the Geneva Convention applied. In fact, as the wonderful British barrister Gareth Pierce points out, “Guantanamo is an experiment in how you obtain information from people, and it’s an experiment in whether anyone is going to protest about that.” If now isn’t the time to protest and expose, with all our resources, the deeply anti-democratic core of this “new paradigm,” when? If we, as lawyers, don’t cut through the obfuscation and lead the charge, who will?