GiTMO Tribunals: Righteous Reasons to Abandon the US Constitution?

After my last post, Thomas Drake, a former NSA official, pointed out that the circus of the Guantanamo Bay show-trials were the consequence of the US’s discarding of the “legal architecture” of the Constitution.

Drake, who successfully resisted the government’s attempts to persecute him for whistleblowing, is technically correct.  A range of practices, including torture, pre-emptive policing, indefinite detention, surveillance, warrantless wiretapping—were condoned and legitimated through post-facto legislation passed with “bipartisan” consensus and executive orders.  But there’s something special about the divorce between Gitmo and the Constitution. From the very beginning of the Bush Administration’s decision to use the US military camp on the island of Cuba, it seems evident that the whole point was to abandon the legal architecture.

The Bush Administration’s decision to imprison captured terror suspects at Gitmo–without warrants, time limits, outside observers to monitor treatment, or a clear legal framework–enabled the one of the first gaping territorial holes through which to run as far away as publicly, socially, journalistically, Americanly, acceptable from the Constitution and international law.  The inherent blurriness of the “principles” that anchor the legal possibilities of Gitmo stem from the fact that it is an extra-territorial U.S. territory, a U.S. military base that houses captured prisoners of war but renames them “enemy combatants.” And so the extra-Constitutional Entertainment Emporium was opened.

As Daphne Eviatar, Senior Counsel, Human Rights First’s Law and Security Program, pointed out several days ago, whether the Constitution is applicable in Guantanamo has been in question since the moment it opened til now, 11 years later.  Moreover, the “question” if we can call it that—of whether the US Constitution will apply—will not only remain unanswered, but the US Army Judge who is presiding over it, will play cat and mouse with the 5 defendants and their lawyers:

Judge James Pohl: “Give me a concrete example, and I’ll tell you what applies.”

This kind of toying is in spite of the fact that the US and the defense attorneys agree in all but 1 of 25 pre-trial motions that the defense filed. Regardless, there is still no articulation of whether the US Constitution will provide the set of rules to be followed.

The urgent question now is not whether–but why–legal architectures get changed. There’s probably a million part answer to that. I promise–a little search in Lexis-Nexis will confirm that.

One important answer begins from the point about the state that I made in a previous post: the purpose and the intention of the state are divergent—perhaps even conflicting. If that makes sense, then we can see easily that the urgent concern of those in power to stay in power requires suspending judgment in the face of widespread hysteria. This is what we saw in the immediate days after September 11, 2001:  The rush to be in control (Giuliani), to vow “justice out of love” (Bush), to insist that the actions of 19 stood in for an entire “cultural” worldview of terror—these impulses amplified the need to cut that swath of weeds called Constitutional protections (mistaken as safeguards against hasty, irrevocable actions) in favor of aggressive, decisive action.

And indeed, the USA PATRIOT Act–the first bill in the aftermath of 9-11 to overturn the legal architecture of the US Constitution–was passed with almost no objection (98-1 in the Senate with the lone naysaying vote from Russ Feingold, D-WI, who lost his seat in 2010). Even Paul Wellstone (D-MN) voted yes. Kay Landrieu (D-LA) was absent for the roll call vote.

It was the first of innumerable demonstrations of the widespread insistence that an elected or appointed official be on the right side of the War on Terror, i.e., in favor of it. The visceral hysteria was reflected every time a member of Congress and the Senate voted in favor of measures to expand the scope of power, of authority, of an aggressive boast to be “in charge.”

As Hannah Arendt says in her sobering reflection on the events of 1930’s Europe,

Before they seize power and establish a world according to their doctrines, totalitarian movements conjure up a lying world of consistency which is more adequate to the needs of the human mind than reality itself; in which through sheer imagination, uprooted masses can feel at home and are spared the never-ending shocks which real life and real experiences deal to human beings and their expectations. (Arendt 1951, 353)

The broad patriotic, Americanly, belief in the lying world of consistency resulted in an extreme anxiety for the rest of the American populace who are on the receiving end–in this case, of the WoT–those who were, or assumed to be, or were empathetic to Muslim men, women and children.  To be Muslim in the US meant–still means–living in anger or in fear of waking up and not be sure which side of the law you will find yourself on any given day.

And for those who were wielding that stick of the WoT, from the Bush Administration and fellow Republicans to—the supposed challengers—the Democrats who allied themselves with Bush & Co., they intuitively knew that the drive to increase the scope of power requires an increase in the scope of immunity from the abuses of power.

This point is slightly different from one that Glenn Greenwald makes in his book, With Liberty and Justice for Some:

…even the most well-intentioned leader will eventually abuse his power if he is not constrained by law. Indeed, and somewhat paradoxically, a ruler’s belief in his own virtue actually renders abuses of power more likely, since he can rationalize all manner of arbitrary and capricious measures: I am good and doing this for good ends, it is therefore justifiable.” (Greenwald 2007, 5)

My point is the counterpart of Greenwald’s: most politicians intuitively understood that well before September 11, abuses of power, especially in the name of virtue and justice, will require immunity eventually–and they can/will plan for it. There are many ways to obtain immunity, for example, such as post-criminal pardons a la Scooter Libby.  But that is not the most dependable version of a future escape plan in case of trouble.

Instead, immunity itself takes the forms of

1. expanding power in the form of bills that entail increasing space in which to act without safeguards.
2. Taking advantage of loopholes in already-existing regulations.
3. Deliberately creating grey spaces (legally, geographically, politically) in which extra-legal measures, loopholes, and outright aggressive acts can be embraced.
4. Limiting what others know about the cards you have (hence the impetus to insist on an ever-expanding scope of privacy).

Clearly, #4 comes into play in war, in poker, and in the courtroom.  The less others know, the more you can spring surprise attacks, the more you can make people gamble on their best hopes, and the fewer chances that someone else will be able to call you out on the dirty tricks that you play to win.

Hannah Arendt again:

The only rule of which everybody in a totalitarian state may be sure is that the more visible government agencies are, the less power they carry, and the less is known of the existence of an institution, the more powerful it will ultimately turn out to be (Arendt, 1951, 403).

A few pages before, Arendt ruminates on the nature of state power under ambiguous conditions:

…this permanent state of lawlessness found expression in the fact that a ‘number of valid regulations [were] no longer made public. Theoretically it corresponded to…the dictum that ‘the total state must not know any difference between law and ethics’ (Arendt, 1951, 394).

As we know, #3 and #4 violate the rule of law—the same rule of law that is invoked to force “ordinary” wrongdoers—those without power– to be accountable. That’s what it means to incarcerate poor minorities for petty crimes while allowing powerful wrongdoers like former Sen. & Gov. Jon Corzine, (and also a leading fundraiser for POTUS) to garner millions of dollars in bonuses. By contrast, in the business of war, Bradley Manning and Julian Assange have upended #4. They have not been allowed to walk away.

In the Grey Zone of Guantanamo, at least #3 and #4 apply. I’ve already discussed #3 above. But as I discussed in my last post, #4—limiting what others know about the cards you have—has been a key concrete strategy on the part of the Department of Justice and the U.S. Army—by virtue of being able to take refuge in #3.

In the case of the trials of Khalid Sheikh Mohammad and his four co-defendants, the inability to depend on a clear legal framework creates the “shapelessness”—the ambiguity–of the structure, but it does not explain it (Arendt’s phrase 1951, p. 398).

As we’ve seen over the last week, the increased drive to “privacy” is invoked to protect national security interests.  But in fact, the ability to take refuge in immunity and gain a serious foothold in the sheer unrestricted power to harass and justify the act of harassment, comes from taking away someone else’s ability to call you out.

As Thomas Drake says, the US did abandon the US Constitution. But then again, whether convinced of its own righteous pursuit of justice or just playing it safe, they found every reason to abandon it.

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Khalid Sheik Mohammed, Increased Privacy, and National Security: The Guantanamo Bay Spectacle

Update (below):

I wonder what goes through the minds of the prosecutors and Army Judges involved in the 9-11 staged spectacles surrounding various “terrorism-related” activities.  Yesterday, in Guantanamo Bay, at the show pre-trial for death-penalty proceedings for Khalid Sheik Mohammed and several others, Edward Ryan, the US Justice Department prosecutor asked for more restrictions on the release of “hundreds of thousands” documents having to do with the September 11 attacks. As the LA Times reported, Ryan

asked the military commission judge to bar the public release of much of that material to protect secret law enforcement investigative techniques and information about clandestine terrorist activities.

I reread those words in light of the numerous actions of the part of the US, and wonder if anyone of the participating parties—the US Army Judge who oversees the trial, or the prosecutors understand that they are dispelling any doubt about whether they are running a kangaroo court.  Apparently, Ed Ryan and his colleagues are under the impression that we haven’t heard about their “secret” law enforcement techniques.

Edward Ryan continues with his argument:

“That material, he said, includes ‘911 calls from individuals trapped inside the burning towers to people who may have rented rooms or mail boxes to Mohamed Atta or one of the other hijackers.” Atta, one of the engineers of the hijackings, piloted one of the passenger jets into the World Trade Center.”

The United States government has records of calls made by people from inside the WTC to Mohammed Atta or other hijackers? The Department of Justice has other–clear, primary, damning information from secret law enforcement techniques? And it’s taken 12 years to bring Khalid Sheikh Mohammed to trial?

Let’s just keep going. This is better than reading Kafka.  Ryan points to the fact that similar restrictions were imposed Timothy McVeigh and Zacarious Moussaui. But McVeigh was charged, tried, and sentenced to death by 1997, within 2 years his attempts to bomb the Oklahoma City building.  Moussaui was found guilty in 2006—less than 5 years after September 11—of planning attacks in concert with the group of 19.

“Other materials, Ryan said, deal with “military operations that are sensitive” and the “names of suspected terrorists and the strategies they used to communicate with one another, their operational nicknames and code words.”

Apparently, the US Department of Justice is concerned that some part of the gazillions of people who populate the 7 continents might learn about the counterterrorism techniques deployed by FBI, CIA, the US Army, Military, and Navy in the 12 years since 9-11. I’m here to tell you about some of the secret—effective–law enforcement techniques that the US has used over the last decade. With this, I join the ranks of Bradley Manning and Julian Assange in releasing top-secret information:

–the decades long renditions-program maintained by the CIA, which scooped up Syrian-Canadian engineers like Maher Arar and sent him back to Syria to be tortured and put in solitary confinement for 10 months.

-the entrapment and targeting of hundreds of Muslims in the United States.

-the federal (and state) governments’ relentless zeal in passing successive laws and policies that expand the scope of policing powers (NDAA, H.R. 347, SB1070, S.Comm, renewal of the Military Commissions Act, FISA).

-The highly touted extra-legal assassinations of Osama Bin Ladin (marveled, boasted about by POTUS himself, and rehashed in excruciating detail on 60 Minutes, a book by one of the Navy Seals involved in the killing (somehow not banned as giving “highly classified information”), and gleefully reviewed from multiple angles in Vanity Fair, including the Leon Panetta’s and POTUS’s own deep thoughts on the matter of extra-legal assassination, and multiple rags professing to be part of the critical watchdogs called the media.

-the much announced extra-legal assassination of “Al-Qaeda’s #2” Anwar Al-Aulaqi, a US citizen and

-extra-legal assassination of his U.S. citizen, 16 year old son Abdulrahman Al-Aulaqi.

–the subsequent drone attacks that have supposedly killed multiple Al-Qaeda terrorists in Yemen, Pakistan, and Afghanistan.

–the killings of multiple other potential #2’s in line to Osama Bin Ladin.

I wonder if Ed Ryan finds the repeated bombing and drone attacks and complete abrogation of human rights on the part of the US—do those endanger national security? Does the NYU/Stanford Drone Report on the murders of more than 2000 civilians (and countless “militants”—defined as those who come to take care of their injured and dead in the immediate aftermath of attacks by drones)—endanger national security? How about the Columbia Report, “Civilian Impact of Drones: Unexamined Costs, Unanswered Questions,” which points to the broad range of executive and legal measures that enable any future president to kill broadly, vastly, and with ease? Are these also endangering national security?

Back to Ryan’s argument before U.S. Army Judge James L. Pohl:

“Ryan said that once the materials are handed over to the defense in the discovery phase of the case, the government does not want many of them made public in court filings or testimony, or released to the public in other ways.”

‘Discovery,” he said, “is not a public process. It’s not a source of open public access.’”

I can accept that. It’s not a public process. Got it. It needs to be secret from the “public.” Apparently, the “public” include the defendants and their lawyers, too.

“Defense attorneys asked for some modifications, especially the government’s request that the five defendants not be allowed to see any of the sensitive or classified material.” (my emphasis)

Apparently release of documents would reveal the incredible plethora of information about terrorists and their activities and contacts. It would prove irrefutably that KSM and Walid Atta and others are terrorists who want to hurt America. That in turn would endanger national security?

I wonder how the abrogation of the due process and violation of the human rights of 800 prisoners in GTMO over the course of the decade enhance national security. I wonder how national security concerns were protected by holding a number of children among them, like Omar Khadr, and clear innocents like Adnan Latif, whose repeated exoneration was ignored, until finally, he killed himself. Especially in light of the fact that the families of these prisoners and their communities are probably pretty pissed off if they weren’t before.

Clearly, national security isn’t the issue here. The drive to increase “privacy” is correspondingly a drive to increased immunity from the charge of lawlessness in the name of law. As Yemeni –based lawyer Haykal Bafana tweeted to me this morning:

What is at issue is US ability to plausibly deny that that they have initiated, perpetrated, and engaged in the most focused, expansive, and the unqualified campaign to target an international and domestic population of Muslims—merely because they could. And where they couldn’t engage in those processes, the state—under the aegis of GW Bush and the Republicans—with the unabashed help of Democrats from 2001 until today—has passed laws that would allow for the unapologetic harassment, torture, and persecution of Muslims.  There isn’t enough time in all of our years put together to lay out every instance of persecution on this site, although many lawyers, activists, human rights organizations, and pundits are on the case.  Again, Bafana states the profound truth:

Despite the still persistent charges from outraged domestic and international dissenters, US Department of Justice and US Army Judges appear to think that their actions can withstand scrutiny from international observers. As bizarre, they appear to believe that their actions are not already transparent. One doesn’t need access to classified materials to understand that the spectacle in Guantanamo is a parody of justice.

If we turn our attention to the show-trial at Fort Hood of former US Army Psychiatrist Malid Nidal Hassan, the same impression arises: Nidal Hassan’s trial for the killing of multiple people on Fort Hood Army Base has been repeatedly delayed as the trial judge Col. Gregory Gross has ordered that Nidal Hasan must shave his beard because it shows disrespect for the Army proceedings. Nidal Hasan—arguing that he is close to death and that it would be a sin to shave at this point, has refused to shave. Gross’ response has been repeatedly to fine and place Nidal Hasan in contempt multiple times. He rejects Nidal Hasan’s explanation because the sign “of his religious faith hasn’t been sincere enough.”

Which part of this ridiculous battle between a US Army judge and a suspect suggests that this engagement is anything other than act of pure unadultered, unaccountable, power—an act designed to humiliate and squelch Nidal Hasan as part of a public spectacle designed to send a message to millions of religious Muslism? Since when are American non-Muslim Army judges able to distinguish sincere religious belief from falsehoods? What exactly in their careers has equipped them to make this distinguished judgment?

Does the US Army or the Department of Justice—or even the present Administration wonder about how their actions are received by the international arena and international press?  Do they think that news of their rulings will somehow increase the trust of international observers as the US makes claims about caring about human rights violations in…well…anywhere else in the world? Except for Palestine of course. No human rights violations there.

Do they wonder about how US citizens fare when traveling abroad in the light of all of these “measures” to protect national security? Unimpeded acts of torture, lawlessness, incarceration, confinement, and kangaroo trials—in case it isn’t obvious—can only increase the national insecurity at home and threaten Americans travel abroad—even and especially for those who wish only to live in peace with Muslims around the world.
Update:

Haykal Bafana reminds me that his second tweet is in fact a quote from Shakespeare. Precisely, it’s from Act III, Scene I of the History of King John (1596).