Disinformation Book of Lists (15 page)

The 660 or so people being held at the naval base in Guantanamo Bay, Cuba, have never been tried or even charged with crimes. They can be held for the rest of their lives at the whim of the government, and the military has floated the possibility of executing some of them. In an effort to remedy this disgraceful destruction of rights and the law, the Center for Constitutional Rights filed a petition seeking
habeas corpus
, which would force the government to Constitutionally process the prisoners (i.e., quick and speedy trials, jury of peers, right to confront accusers, etc.).

A district court refused, buying the feds' ridiculous argument that because the US military base is located on the island of Cuba, it isn't subject to US law, though it also is most definitely
not
subject to Cuban law. Following this line of argument, no law applies there, making it an autonomous zone, as devised by Hakim Bey, or an inter-zone, from the works of William Burroughs. I'm sure that the men and women stationed at Guantanamo Bay would be surprised to know that they can apparently steal, rape, and kill with impunity. Go ahead, snort coke off your commanding officer's desk. It's all right, because US law doesn't apply.

Seriously, it's hard to see how any court bought such a transparently stupid, self-serving argument. The Center for Constitutional Rights has appealed this boneheaded decision to the Supreme Court, which triggered a flood of
amicus curiae
(friend of the court) briefs from some powerful individuals and groups who used the chance to lambaste the concentration camp 90 miles off the coast of Florida.

1

former US diplomats

Who
: 23 former US diplomats, many of whom also served as Assistant Secretaries of State or in other high-level positions.

Excerpts
: “This undermines what has long been one of our proudest diplomatic advantages—the nation's Constitutional guaranty, enforced by an independent judiciary, against arbitrary government.”

“The world has taken due note of the fact that the United States has incarcerated these petitioners in Guantanamo and that there has been no effort to charge, try or judge them under law. This has generated international concern. The Inter-American Commission on Human Rights has undertaken precautionary measures. The UN High Commissioner for Human Rights has spoken out. The International Committee of the Red Cross has gone on record. The British Court of Appeal in the Abbasi case has expressed its displeasure. The Human Rights Chamber of Bosnia-Herzegovina, a court that the United States helped create, has issued its own protest. And Shirin Ebadi, the recipient of the most recent Nobel Peace Prize, referred specifically to Guantanamo in her acceptance remarks as an affront to universal human rights.

“Citizens of foreign countries cannot assume that what happened to the Guantanamo prisoners cannot happen to them. It will not be evident why, if the Executive Branch can detain prisoners in Guantanamo free of judicial inquiry, it cannot expand the practice to establish a global criminal justice system with other prison camps like Guantanamo, similarly subject to no legal oversight and in which any foreigner deemed a danger by some official might be detained indefinitely. Nor will it be evident why such a practice could not reach out to persons within the United States or even to American citizens.”

2

former US government officials

Who
: “[F]ormer US government officials who have exercised legal responsibility over matters concerning the US Naval Base at Guantanamo, the Panama Canal, or other US bases on foreign soil and those whose responsibilities substantially involved the scope of U.S. jurisdiction and activities abroad.”

Excerpts
: “Although Guantanamo is unusual, it is not
sui generis.
History records at least three other examples of territory outside US territorial borders and sovereignty, but still under the complete jurisdiction and control of the United States: the Canal Zone, the Trust Territory of the Pacific Islands, and the former American sector in Berlin. In each of these instances, US courts have, by extrapolation from the
Insular Cases
, found fundamental constitutional rights to be applicable to citizens and aliens within these territories. As in Guantanamo, the United States for strategic reasons gained full powers of jurisdiction and control over these territories, without ever possessing actual sovereignty.”

“If the Government denies that foreign nationals have rights, then by confining them at Guantanamo, it is engaged not in legal detention, but in a lawless exercise of naked force.”

“The Due Process Clause [of the Fourth Amendment] is phrased in universal terms, protecting any ‘person' rather than ‘citizens' or members of ‘the people.' Nor does its wording suggest limitations as to place.”

“Maintaining involuntary captives of the United States as rightless outlaws because of their captive status would revive the logic of slavery, a constitutional practice that this country has long abandoned.

“In any event, the Constitution undeniably protects involuntary subjects, such as children who may be too young to form voluntary connections.”

“If the Due Process Clause does not apply to detainees at Guantanamo, the Government would have effective discretion to starve them, to beat them, and to kill them, with or without hearings and with or without evidence of any wrongdoing.”

3

former American POWs

Who
: “Leslie H. Jackson, Edward Jackfert, and Neal Harrington, former American prisoners of war detained by the German and Japanese governments during World War II.”

Excerpt
: “As these examples [occupied Germany, Vietnam, Grenada, Panama, Haiti, and the Persian Gulf] show, the use of tribunals traditionally has been an integral component of the United States' treatment of persons captured on enemy soil. The Government's current practice of imprisoning foreign citizens indefinitely without providing them with an individualized determination of their status represents a sharp break with this historical commitment. Allowing access to the courts is the only means for these detainees to achieve the narrow redress they seek—individualized determinations of their status as required by the Geneva Conventions and US military regulations.”

4

retired US military officers

Who
: “[T]hree retired military officers. Each one formerly served as the Judge Advocate General or the senior legal advisor for a branch of the United States military, and has extensive experience with US military regulations and the Laws of War.”

Excerpts
: “The United States has also demanded application of the principles codified in the Geneva Conventions to captured US service personnel, even when they were taken prisoner under circumstances when the Conventions, technically, did not apply. For example, following the capture of US Warrant Officer Michael Durant by forces under the control of Somali warlord Mohamed Farah Aideed in 1993, the United States demanded assurances that Durant's treatment would be consistent with the broad protections afforded under the Conventions, even though, ‘[u]nder a strict interpretation of the Third Geneva Convention's applicability, Durant's captors would not be bound to follow the convention because they were not a ‘state.'”

“Invoking international human rights standards, the United States also has condemned foreign governments that have held detainees incommunicado, depriving them of the ability to seek judicial review of their confinements. The United States, for example, objected recently when the Liberian government arrested journalist Hassan Bility and held him incommunicado on the purported ground that he was an ‘illegal combatant' involved in terrorist activity.”

“Yet even as American officials condemn other nations for detaining people indefinitely without access to a court or tribunal, authoritarian regimes elsewhere are pointing to US treatment of the Guantanamo prisoners as justification for such actions. Eritrea's Ambassador to the United States defended his own government's roundup of journalists by claiming that their detention without charge was consistent with the United States' detention of material witnesses and aliens suspected by the United States of terrorist activities.”

5

Fred Korematsu

Who
: “More than sixty years ago, as a young man, Fred Korematsu challenged the constitutionality of President Franklin Roosevelt's 1942 Executive Order that authorized the internment of all persons of Japanese ancestry on the West Coast of the United States. He was convicted and sent to prison. In
Korematsu v. United States
, this Court upheld his conviction, explaining that because the United States was at war, the government could constitutionally intern Mr. Korematsu, without a hearing, and without any adjudicative determination that he had done anything wrong.”

Excerpts
: “Although certain aspects of the ‘war against terrorism' may be unprecedented, the challenges to constitutional liberties these cases present are similar to those the nation has encountered throughout its history. The extreme nature of the Government's position here is all too familiar as well. When viewed in its historical context, the Government's position is part of a pattern whereby the executive branch curtails civil liberties much more than necessary during wartime and seeks to insulate the basis for its actions from any judicial scrutiny.”

“In
Youngstown Sheet & Tube Co. v. Sawyer
, this Court invalidated President Truman's nationalization of the steel mills during the Korean Conflict, despite the Commander-in-Chief's insistence that his actions were necessary to maintain production of essential war material. During the Vietnam War, this Court rejected a Government request to enjoin publication of the Pentagon Papers, refusing to defer to executive branch claims that publication of this top-secret document would endanger our troops in the field and undermine ongoing military operations.
New York Times Co. v. United States.”

“During World War I, John Lord O'Brian served as Special Assistant Attorney General in charge of the War Emergency Division of the Department of Justice. In this capacity, he played a central role in enforcing the Espionage Act of 1917. Four decades later, reflecting on his own experience, O'Brian cautioned against the ‘emotional excitement engendered…during a war,' and warned that ‘the greatest danger to our institutions' may rest, not in the threat of subversion, but ‘in our own weaknesses in yielding' to wartime anxiety and our ‘readiness to…disregard the fundamental rights of the individual.' He expressed the hope that ‘our judges will in the end establish principles reaffirming' our nation's commitment to civil liberties.

“As Chief Justice Rehnquist has written, ‘[i]t is all too easy to slide from a case of genuine military necessity…to one where the threat is not critical and the power [sought to be exercised is] either dubious or nonexistent.' It is, he added, ‘both desirable and likely that more careful attention will be paid by the courts to the…government's claims of necessity as a basis for curtailing civil liberty.'”

6

UK Members of Parliament

Who
: “175 Members of both Houses of the United Kingdom of Great Britain and Northern Ireland.”

Excerpt
: “There is no mechanism in place or being followed to ensure that the circumstances of these detentions meet even the most basic standards of due process or human rights. The rule of law requires reasonable due process to ascertain the bases asserted in support of prolonged detention as well as the veracity of the facts that support those bases. Indefinite detention without charge represents a violent departure from principles underlying our common legal heritage.

“The detention center at Guantanamo was designed, according to the US Administration, to house ‘the worst of the worst' and ‘hardest of the hardcore.' Yet, other statements by the administration suggest that Guantanamo holds no high ranking terrorist of any significance.”

7

international law and jurisdiction professors

Who
: Four law professors from the US. “All are academic international law experts who have devoted significant attention to the jurisdictional aspects of national and international law in areas such as international criminal law, international economic law, and human rights. Professors Barton and Carter are members of the bar of this Court.”

Excerpts
: “The prisoners held at the United States Naval Base at Guantanamo are not the only persons who will be affected by the Court's jurisdictional decision in this case. In the aftermath of September 11, 2001, it appears possible that the United States executive will establish its own special criminal court process, seeking to avoid the use of Article III judges and to use instead an executive form of review rather than an independent judicial review, such as that provided by this Court,
Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.
This new process may be applied far beyond those captured in connection with the Afghanistan or Iraq actions, for the war on terrorism is likely to last indefinitely.”