How Civilized Men Might Live

Over on The Volokh Conspiracy, an attorney for the recently ruled-on Al-Marri weighs in on the nature of terrorism and security:

Whether one trusts or distrusts President Bush and the manner in which he has prosecuted "The War on Terror," the powers he has asserted to himself (to the Executive Branch) -- the power to detain an individual lawfully present insde the United States based solely upon a Presidential edict and the triple hearsay declaration of a Pentagon bureaucrat -- could easily be abused by him or a future resident of the White House. Of course, while anything is possible, it is fair to say that to date no terrorist has obtained (much less detonated) a nuclear weapon anywhere in the world, whereas elected leaders routinely abuse power; such is the history of man. I do not think of myself as an alarmist, but I am alarmed that educated people can characterize as "bizarre" the possibility that government powers could be abused. Indeed, it was in response to such abuses that the Bill of Rights was amended to the Constitution in the first instance.

[...] I should add that I am the "Mark Berman" who is identified as al-Marri's "Next Friend" in the caption of the Fourth Circuit case, and have represented him since he was a run-of-the-mill criminal defendant, charged in the Southern District of New York with credit card fraud and possessing of constitutional rights. My views are those of an advocate. As a personal aside, however, I have spent the past year "commuting" back and forth from Israel where my family has been living. Israel, of course, is a very small country that lives not only with the threat of terrorism and war on its home soil, but actual terrorism and war on its home soil almost every day. It is surrounded not by giant friends and allies like Canada and Mexico but by hostile neighbors in Lebanon, Syria, Gaza, and the West Bank. All of its borders (including those with Jordan and Egypt) are porous. Until it built a security/border wall and fences, Israel's Palestinian neighbors would successfully send their youth to blow themselves up in Tel Aviv cafes, Netanya hotels, and Jerusalem buses. Rockets launched from Gaza fall on Sderot and surrounding areas daily, almost two years after the last Israeli left. Plus, there is the growing threat of complete nuclear annihilation by Iran. All to say that Israelis have a lot to be afraid of in actuality, and not only hypothetically.

[...] Yet, one does not often see or hear the sense of panic and fear mongering that has become charcteristic of American discourse regarding terrorism and its suppression (by politicians and the media, and which is implicit in the hypo which started this discussion). Israel is not a country that has a Constitution or a Bill of Rights like ours, yet, even here, fully justified fear of future terrorist attacks has not led to a police-state system inside of Israel in which people can be detained indefinitely without charge simply because the Prime Minister says so. The police are free to act aggressively to protect the population, but there is still a legal process with recourse to the courts; whether that process should be more robust or applied more even-handedly can be debated, but the point is that the decision to idefinitely detain an individual is not left to executive say-so alone, which is the authority President Bush has asserted under our Constitution.

Some Small Hope

In the context of Captain Keith Allred's decision to dismiss the case against Salim Hamdan (one of the more infamous Gitmo detainees), Scott Horton of Harper's draws some interesting historical parallels

I think for instance of Edmund Burke’s Letter to the Sheriffs of Bristol, a minor masterpiece which is not read and appreciated as it should be today. And reading Judge Allred’s opinion, for some strange reason, I kept hearing the words of Edmund Burke in the background, growing louder and louder with each subsequent paragraph.

The Letter to the Sheriffs of Bristol is a simple document – the transmission to two law-enforcement officers of his constituency of an act that the government of Lord North has put to Parliament. The act suspended the great writ of habeas corpus - not for the good burghers of Bristol, of course, but only for a group of murderous insurrectionists who then stood in open and bloody revolt against their lawful sovereign. And the act went further, namely, it provided that these miserable wretches, whose insolence and defiance now extended to the seas, could be labeled pirates at the King’s discretion, and thus robbed of the right to be tried in courts. They would be dealt with in a summary fashion by the King’s military. And the act also provided that these miscreants could be transported across the ocean to England and held there to await their summary disposition – a step which justified the suspension of habeas corpus, since otherwise an English court might demand an accounting for their brutal treatment and incarceration.

[...]

Let the Great Writ stand, said Burke, and from this point be suspicious when the Government employs the label “pirate” to shorten the rights of those it sees as enemies. These words reflect the sum and the spirit of the rulings out of Guantánamo. They reflect the spirit of liberty.

Oh yes. Exactly who were those vermin insurgents who by Lord North’s design were to be stripped of habeas corpus, subjected to military trials with no rights and held in the crudest and most abusive conditions? They were the Americans, and the conflict was our Revolution.

We urge you to read the article entire, but thought it germane to draw eyes to these salient points.

The Moral High Ground

The CIA's favorite form of torture

According to news reports, the White House is preparing to issue an executive order that will set new ground rules for the CIA's secret program for interrogating captured al-Qaida types. Constrained by the 2006 Military Commissions Act, which contains a strict ban on abuse, it is anticipated that the order will jettison waterboarding and other brutal interrogation techniques.

But President Bush has insisted publicly that "tough" techniques work, and has signaled that the CIA's secret program can somehow continue under the rubric of the Military Commissions Act. The executive order will reportedly hand the CIA greater latitude than the military to conduct coercive interrogations. If waterboarding goes the way of the Iron Maiden, what "tough" techniques will the CIA use on its high-value detainees?

The answer is most likely a measure long favored by the CIA -- sensory deprivation. The benign-sounding form of psychological coercion has been considered effective for most of the life of the agency, and its slippery definition might allow it to squeeze through loopholes in a law that seeks to ban prisoner abuse. Interviews with former CIA officials and experts on interrogation suggest that it is an obvious choice for interrogators newly constrained by law. The technique has already been employed during the "war on terror," and, Salon has learned, was apparently used on 14 high-value detainees now held at Guantánamo Bay.

The Salon article goes on to describe how sense-dep has already been used and the potential side effects (hallucinations, psychosis, etc).

Also, Amnesty International and Human Rights Watch released some documentaton on America's gulags:

In the most comprehensive accounting to date, six leading human rights organizations today published the names and details of 39 people who are believed to have been held in secret US custody and whose current whereabouts remain unknown. The briefing paper also names relatives of suspects who were themselves detained in secret prisons, including children as young as seven.

[...]

The 21-page briefing paper, “Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror,’” includes detailed information about four people named as “disappeared” prisoners for the first time. The full list of people includes nationals from countries including Egypt, Kenya, Libya, Morocco, Pakistan and Spain. They are believed to have been arrested in countries including Iran, Iraq, Pakistan, Somalia and Sudan, and transferred to secret US detention centers.

[...]

“Off the Record” highlights aspects of the CIA detention program that the US government has actively tried to conceal, such as the locations where prisoners may have been held, the mistreatment they endured, and the countries to which they may have been transferred.

It reveals how suspects’ relatives, including wives and children as young as seven years old, have been held in secret detention. In September 2002, Khalid Sheikh Mohammed’s two young sons, aged seven and nine, were arrested. According to eyewitnesses, the two were held in an adult detention center for at least four months while US agents questioned the children about their father’s whereabouts.

Similarly, when Tanzanian national Ahmed Khalfan Ghailani was seized in Gujarat, Pakistan, in July 2004, his Uzbek wife was detained with him.

The human rights groups are calling on the US government to put a permanent end to the CIA’s secret detention and interrogation program, and to disclose the identities, fate, and whereabouts of all detainees currently or previously held at secret facilities operated or overseen by the US government as part of the “war on terror.”

What makes the U.S. a better nation than Pakistan, Iran or Afghanistan under the mujahdeen? Its secular tradition? Its respect for human rights? Its sterling civil liberties record? Its adherence to the Western Enlightenment tradition?

What about the United States is worth defending?

Khalid Sheikh Mohammed Loves Big Brother

Forgive us for being slow.

But when the neoconamorata argued so fervently for extraordinary rendition, for lawyerless tribunals and for the Military Commissions Act, they used the "ticking time-bomb scenario" (an absolute fiction, by the way) to justify it. These terrorists hold vital information to the War of Terror, they said. Allowing them to go through the clunky rigmarole of due process will just let their plots unfold, they said.

Khalid Sheikh Mohammed, having been imprisoned by the U.S. for over three years (after having been snatched, tortured by the CIA, and then deposited quietly in Gitmo), just now confessed to:

1. The 1993 World Trade Center bombing.

2. The 9/11 attacks, "from A to Z."

3. The shoe bomber operation to down two American planes.

4. A 2002 shooting in Kuwait that killed an American marine.

5. The Bali nightclub bombing that killed more than 180 in 2002.

And twenty-five others, including assassination attempts on Pope John Paul II, President Clinton and Jimmy Carter.

So we now have a benchmark. It takes three and a half years of torture to make a terrorist mastermind confess the details to attacks that have already taken place or never happened. Even when allowed ruthless efficiency and zero oversight, the U.S. government still can't finish on time or under budget.