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“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.”
Lord Johan Steyn, lecture to the British Institute of International and Comparative Law, November 25, 2003
Britain’s law lords, who make up the country’s highest court, are by tradition a secluded lot, avoiding comments on matters outside of their court. But last November one of them, Lord Steyn, broke those bounds in a dramatic way. He gave a lecture condemning the U.S. government for keeping hundreds of prisoners in Guantanamo Bay, Cuba, in what he called a “legal black hole” — unable to challenge their imprisonment before any court. Speaking, he said, as a lifelong admirer of American ideals of justice, he called the treatment of the men held at Guantanamo a “monstrous failure of justice.”
It is not just for Guantanamo that the alarm bells of American liberty should be sounding. Civil liberties are more broadly in a perilous state, wounded in the historical pattern noted by Lord Steyn: repression in times of perceived national danger. In the name of fighting terrorism, President Bush and his administration have abruptly overridden rights protected by the Constitution and international law. Ideas foreign to American principles — detention without trial, denial of access to lawyers, years of interrogation in isolation — are now American practices.
The danger of what is happening is more profound than the denial of justice to some individuals. The Bush administration is really attacking a basic premise of the American system: that we have a government under law. It was a novel idea when James Madison, Alexander Hamilton, and the rest laid it down at the end of the 18th century, and ever since it has been a distinctive feature of our polity: Political leaders are subject to the law, responsible to legal constraints on their power as well as to the vote of the people. “A government of laws, and not of men,” John Adams first said.
The administration’s policy, in one instance after another, has been to avoid any accounting before the law. It has tried to prevent the prisoners it holds as possibly connected to terrorism, in Guantanamo and elsewhere, from testing in court whether in fact they have anything to do with terrorism. It has covered its actions in secrecy, which is the enemy of legal and political accountability. Aliens have been the most numerous victims of the administration’s methods, but not the only ones. Oppressive tactics used against aliens have been directed against American citizens, too.
In the weeks after September 11, 2001, FBI agents arrested more than 1,000 aliens, most of them Muslims, on suspicion that they might have something to do with terrorism. Many were held for months without charges, in painful conditions. In the words of a New York Times legal writer, Adam Liptak, their treatment “inverted the foundation principles of the American legal system.”
They were arrested essentially at random, without any probable cause to believe they had terror connections. They were treated as guilty until proved innocent — detained until a lengthy FBI process concluded that they “posed no danger to the United States.” Many were held for months after judges ordered them released, or after they had agreed to leave the country because they had overstayed their visas or otherwise violated immigration rules. Some were subjected to abuse in prison, verbal and physical: At the Metropolitan Detention Center in Brooklyn, guards slammed detainees against the wall, hurt them by stepping on their leg chains, kept them in cells with fluorescent lights on 24 hours a day, and told them, “You’re going to die here.” Of the thousands detained, only two have been charged with a connection to terrorism.
One of the Bush administration’s programs that has drawn widespread international criticism is the holding of alleged Taliban fighters and terrorists in prison cages at Guantanamo Bay, Cuba. There are more than 600 prisoners. The general impression is that they were almost all captured by U.S. forces during the war in Afghanistan. But it is now clear that that is simply not true. Over the past six months, several dozen detainees have been sent home after being held for as long as two years, and none were charged with any offense.
A substantial number of the detainees were arrested by governments in places as remote from Afghanistan as Gambia, in West Africa, turned over to American authorities, and taken to Guantanamo. So it appears from a brief filed in the U.S. Supreme Court in January by 175 members of the British Parliament. The brief describes what was known about nine British subjects and two others with British connections who were being held in Guantanamo.
One of the British citizens, Asif Iqbal, lived in Tipton, in the British Midlands. His parents, who came to England from Pakistan decades ago, went to Pakistan in July 2001 to find a bride for him. Iqbal, who was 20, followed in September. The marriage was arranged, and he told his parents that he was going to the city of Karachi to meet friends. He telephoned them from there — and was not heard from again.
Two friends of Iqbal’s from Tipton followed him to Pakistan in 2001 — and similarly disappeared. The brief said they all were apparently seized in unknown circumstances in Pakistan and turned over to Northern Alliance forces in Afghanistan. The Northern Alliance in turn handed the three to American forces, who were offering cash rewards for possible terrorists.
Jamal Udeen, 35, a web designer, lived in Manchester, England. His parents had moved there from Jamaica. In 2001 Udeen was, he said, traveling through Afghanistan to Iran when Taliban soldiers saw his British passport and accused him of being a spy. He was taken to a prison in Kandahar and tortured. British officials found him and said he would be sent home, but he was sent to Guantanamo instead.
Martin Mubanga is the son of a former Zambian official who moved to Britain in the 1970s. He was arrested, also for unknown reasons, in Zambia in 2002, turned over to U.S. agents, and taken to Guantanamo.
The brief that describes the British detainees is a remarkable document. It concerns one aspect of the Guantanamo detentions: the determination of the Bush administration to keep the prisoners from having their situations reviewed by any court. The Third Geneva Convention, which the United States has signed and ratified, provides that an independent “competent tribunal” must decide any dispute about a prisoner’s status — whether he is, for example, a regular prisoner of war or something unlawful such as a spy or terrorist. The administration declined to follow this convention and declared unilaterally that everyone held in Guantanamo was an “unlawful combatant,” not entitled to the rights of a prisoner of war.
The right of a prisoner to challenge his detention before a tribunal of the kind required by the Geneva Convention is not a legal abstraction. It has acute human consequences. That became clear when the United States, at the end of January, released three teenagers who had been held in Guantanamo for more than a year. One of them, 15-year-old Muhammad Ismail Agha, was interviewed on his return to Afghanistan. He said he was looking for work in 2002 when he was arrested by militiamen and turned over to American forces. His family did not know what had happened to him; it was 10 months before he was able to send them a letter from Guantanamo. “He was innocent,” a cousin of Agha’s said, “and kept in prison all this time.”
When some of the prisoners brought legal actions for habeas corpus — the ancient writ that allows anyone imprisoned to test the legality of his detention — the Bush administration argued that federal courts could not hear the case because Guantanamo is outside U.S. sovereignty. Though the United States has complete control of the area under a perpetual treaty with Cuba, a lower court agreed with the administration. But then, in something of a surprise, the U.S. Supreme Court last November agreed to consider the habeas corpus issue. It did so despite a warning from the Justice Department that this was not the court’s business but should be left to the president to decide as commander in chief.
It was Guantanamo that led Lord Steyn to speak out about wartime civil liberties in a lecture last fall. It was a remarkable speech from a sitting judge, passionate in its condemnation of the U.S. policy. “As matters stand at present,” he said, “the United States courts would refuse to hear a prisoner at Guantanamo Bay who produces credible medical evidence that he has been and is being tortured. They would refuse to hear prisoners who assert that they were not combatants at all.”
There is no reason to believe that Guantanamo prisoners have been tortured in, say, the horrifying ways that Saddam Hussein used in Iraq. On the other hand, endless interrogation, isolation, and harsh conditions of confinement are said by medical experts to take a heavy psychological toll. At least 21 prisoners have attempted suicide.
Americans may feel safe from the tactics used in John Ashcroft’s sweep after 9/11 and in Guantanamo, but they are not. The Bush administration has used similar methods against U.S. citizens, and its lawyers argue that citizens have no greater protection of their freedom. Two citizens have been held without trial for more than 20 months, imprisoned in solitary confinement in Navy brigs, subjected to unending interrogation, and denied the right to consult lawyers. In January, the U.S. Su- preme Court agreed to decide whether the administration has the power it claims to detain citizens without trial.
One of the American detainees, Yaser Esam Hamdi, was seized in Afghanistan during the war there. He was in Guantanamo until it was learned that he was born in Louisiana and is hence an American citizen, whereupon he was moved to the United States. President Bush declared Hamdi an “enemy combatant” and ordered him held indefinitely.
A federal public defender, Frank Dunham, acting on behalf of Hamdi’s father, sought Hamdi’s release on a writ of habeas corpus. The U.S. Court of Appeals for the 4th Circuit, in Richmond, Virginia, held that the president had the power he claimed when a citizen was found, like Hamdi, on or near a foreign battlefield. The court said specifically that it was not deciding what the president could do with someone arrested inside this country.
That is the case of Jose Padilla. He was born in Brooklyn, was a gang member, and served several jail terms. In prison he converted to Islam. In May 2002, federal agents arrested him at O’Hare Airport in Chicago and took him to New York as a material witness before a grand jury looking into the 9/11 attack. A judge appointed a lawyer to represent him. But then the Justice Department declared him to be an “enemy combatant” and transferred him to a military brig in South Carolina. His court-appointed lawyer was not allowed to see him after that.
In the Padilla case, a federal trial judge said the government had to show “some evidence” for its description of him as an enemy combatant. The evidence was a statement by a Pentagon official, not subject to cross-examination and without any firsthand witnesses to anything Padilla had allegedly done. The judge said that was enough to satisfy him that there were adequate grounds for his detention.
But on December 18, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York, rejected that claim by a vote of 2-to-1. Even the dissenter said Padilla should be allowed to consult counsel and argue against his designation as an enemy combatant. The administration has taken this decision to the Supreme Court.
The administration has argued that in the Padilla case, any visit by a lawyer might hurt the process of interrogation by destroying the necessary “atmosphere of dependency and trust between the subject and interrogator.” In other words, it might inhibit the effort to overbear the detainee’s will. It is precisely because a prisoner alone in the hands of his jailers may be overborne that we have the Miranda rule in the criminal law and the constitutional guarantee of the right to counsel.
Another noteworthy point in the story of Jose Padilla is the way that it was brought before the public. Attorney General Ashcroft, who happened to be in Moscow at the time, made an announcement on television on June 10, 2002. “We have captured a known terrorist,” he said. “While in Afghanistan and Pakistan, [he] trained with the enemy. In apprehending [him] we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive ‘dirty bomb.'” Ashcroft thus publicly convicted Padilla without a trial. Any prosecutor who so grossly prejudiced a defendant would be called to account for his ethics.
Both in the Padilla case and that of Yaser Hamdi, the administration claimed the right to decide on its own not only the law, but the facts. It asserted the legal power to detain American citizens without any specific congressional authorization, and it argued for habeas corpus proceedings so narrow that the detainees had no real ability to contest the finding that they were enemy combatants. Again, the administration claim runs counter to the American idea of government under law — in particular that it is the courts that decide the facts of legal issues, not the executive.
The Bush administration has often been charged with unilateralism abroad, notably in its rush to war on Iraq without the support of the United Nations. The Hamdi and Padilla cases show that it is just as determined to act unilaterally when it wants to at home, even if the most profound rights of Americans are overridden.
The attempt to avoid any meaningful review by the courts is especially alarming. Judges are the last line of defense for citizens against abuse of government power. The British parliamentarians’ brief in the Supreme Court makes the point well. “The United Kingdom and the United States share an unshakeable commitment to the rule of law,” it says. “Recourse to an independent and impartial tribunal is required by the rule of law, especially when the justification for detention is contested or uncertain. Independent judicial review is the product of over three centuries of constitutional development in both our countries…. [We] respectfully submit that this Court should preserve the judiciary’s vital role to insure that executive actions violate neither the Constitution of the United States nor the international rule of law and human rights.”
The British lawmakers’ interest in the Guantanamo situation raises a question: Why are they so much more concerned about this abuse of rights than we are? If someone tried to file a similar brief on behalf of members of the U.S. Congress, he would have little chance of finding 175 senators and representatives willing to sign it. There is not much public outcry about the Bush administration’s attacks on civil liberties. The press has only latterly begun to pay serious attention.
It is not that the British are more sensitive about these matters. Hardly. Lord Steyn, in his lecture, mentioned a dark time in Britain’s history. In World War II, the British government detained nearly 27,000 people in Britain as suspect aliens, some of them German Jews who had found refuge in Britain — and the courts did nothing to hold the government to rational standards.
The basic reason for the lack of American public response now must be fear. Fear has brought repression before in U.S. history. It led to savage prison sentences in World War I for people who criticized President Wilson’s policies. It led to President Roosevelt’s removing 120,000 people of Japanese descent from their homes on the West Coast and confining them in desert camps during World War II.
Americans were traumatized by the attacks of September 11. We felt more vulnerable than we had in living memory. And the truth is that there was more reason to fear further terrorist outrages than there was to think free speech would injure the war effort in 1917 or to fear disloyalty by Japanese Americans in 1942. In times of fear and stress — the times mentioned by Lord Steyn — we want to put ourselves in the hands of a leader. That means the president.
What is especially dangerous about the present fear is that it has no visible time limit. We cannot imagine the “war on terror” coming to a defined end, as the two world wars did. The terrorists are not going to surrender.
President Bush chose to define the struggle against terrorism after September 11 as a war. It might have been better described as a worldwide law enforcement effort against a criminal gang. But the idea of war has stuck, and that makes the need for watchfulness against abuse of power the more acute. If we allow our liberties to be trampled, as is rightly said, the terrorists will have won. The great American contribution to political theory has been the idea of a government of laws, not men. We rely on the law to protect our system of government and our freedom. We abandon that faith in the law at our peril.
The president of the Israeli Supreme Court, Ahron Barak, a judge much respected around the world, has addressed the subject of terror and the law. He speaks from experience, given Israel’s unending struggle with terrorism.
“Terrorism does not justify the neglect of accepted legal norms,” Justice Barak wrote in 2002. “This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. It is, therefore, not merely a war of the state against its enemies; it is also a war of the Law against its enemies.”
