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
- expanding power in the form of bills that entail increasing space in which to act without safeguards.
- Taking advantage of loopholes in already-existing regulations.
- Deliberately creating grey spaces (legally, geographically, politically) in which extra-legal measures, loopholes, and outright aggressive acts can be embraced.
- 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.