Government Behaving Badly
expects a certain amount of corner-cutting on both procedures and concern for
civil liberties during time of war. That's one of the main reasons some of us
prefer to avoid war when at all possible, because we know that government power
will grow and citizen liberty will suffer. War, as Randolph Bourne explained so
persuasively during World War I (called the Great War at the time, which in retrospect
seems tragically naive), war is the health of the State.
In addition, as Robert Higgs, now a senior fellow at the Independent
Institute, demonstrated rather convincingly in his classic book, Crisis
and Leviathan, increased power and authority taken by States during wartime
is never given back in its entirety. Some of the wartime powers recede when the
war is over, but at the end of a war the government is noticeably and permanently
larger and the scope of citizen freedom is notably smaller than before the war
and soon enough this comes to seem normal. In a long war without visible
end, as our esteemed leaders hasten to tell us the war on terror is, one can expect
the process to be gradual rather than dramatic, but inexorable.
One of the episodes that illustrates how the process of increasing state power
and reduced liberty is occurring during the current war is now being played out
in Guantanamo Bay in Cuba. The decision to bring prisoners/detainees/captives
from Afghanistan to the long-time U.S. Naval base there may have been done mainly
for convenience, because the facility existed. A more disturbing hypothesis, bolstered
by the way the Bush administration has chosen to defend its policies, is that
it was chosen to at least some degree so the U.S. Constitution would not have
to be a factor in administrative decisions. It might be that Guantanamo was used
because it can be a law-free zone.
DENYING COURT ACCESS
Last week U.S. District Court Judge Colleen Kollar-Kotelly
decided that two British citizens and an Australian captured in Afghanistan and
being held at the Guantanamo Naval Base had no access to U.S. courts to challenge
the ways, means, and reasons for their indefinite detention. You could argue that
the decision is defensible from a certain perspective, on narrow legal grounds.
But it highlights the troubling manner in which the administration has chosen
to conduct the undeclared war on terror – and to defend some of its actions in
The very way the government chose to defend this case may be more disturbing than
the decision itself.
Judge Kollar-Kottelly (who still has the Microsoft case pending before her) ruled
that the Guantanamo base was leased from Cuba (as it was in 1903) and under terms
of that lease and a subsequent treaty in 1934, Cuba retains "ultimate sovereignty."
Therefore the base is Cuban territory and U.S. courts don't have jurisdiction
there, and the three detained men do not have access to U.S. courts to determine
whether they are being held legally.
WHO'S REALLY SOVEREIGN?
That's a defensible argument de jure, as constitutional
scholar Robert Levy of the Cato Institute pointed out when I talked with him Friday.
Indeed, Judge Kollar-Kottelly noted that hers was a de jure decision. Insofar
as she seems to be a conscientious and competent judge (based on talking with
a number of lawyers who have observed her or had cases before her), she was probably
purposeful in emphasizing that the decision was based on the law as written.
If you're just reading the lease agreement and treaty, Cuba does, indeed, retain
"ultimate sovereignty" over Guantanamo. But in fact if not necessarily
in law, the United States exercises all the powers of sovereignty in Guantanamo.
The U.S. government gives the theoretical "ultimate sovereign" over
Guantanamo exactly zero power over what goes on there. If the Cuban government
were to try to enforce some aspect of "ultimate sovereignty," it would
almost certainly be met by armed troops and the threat of more to come. The U.S.
does not recognize the Cuban government, nor has it paid any attention to occasional
protests from the Cuban regime that its occupation of Guantanamo is illegal. It
would be most unlikely to bow to a demand from the theoretically sovereign Castro
regime that it change the way it does things in Guantanamo.
So a discussion of sovereignty and Guantanamo necessarily has a certain Alice-in-Wonderland
or Catch-22 aspect to it. The words say it's a lease and Cuba has ultimate sovereignty.
The facts say the Cuban regime that signed the lease and treaty were overthrown
by revolution and replaced by a regime the United States does not recognize. Is
the lease still valid? Is "ultimate sovereignty" a dead letter or an
Such questions could complicate the question of whether Guantanamo is really U.S.
territory, like Guam, for example, where U.S. law holds sway and U.S. courts have
jurisdiction. Judge Kollar-Kottelly, perhaps prudently, chose to ignore them and
simply to refer to the words in the lease and the treaty.
A LAW-FREE ZONE
The practical impact of the decision is that Guantanamo
is a law-free zone where the U.S. Constitution does not govern what the U.S. government
does. That leads me to wonder whether the administration decided to transport
prisoners to Guantanamo precisely so it could do what it wanted there without
being bothered by U.S. courts or the U.S. Constitution.
The administration could have defended the case by arguing that the detainment
was constitutional, that the detainees were being handled appropriately under
the circumstances, and that treating the captives humanely (as seems to be the
case despite early European concerns) satisfies constitutional requirements. Instead,
it chose the broader claim that the U.S. Constitution is not applicable in this
case. That suggests that in conducting certain aspects of the war on terror the
administration is purposely working so as to avoid having to be bothered by the
fussy old 18th-century strictures on government action that that document embodies.
MORE LAW PROBLEMS
There's another aspect to what's going on at Guantanamo
that suggests the United States is purposely ignoring not just the Constitution
but recently-passed U.S. laws. There is a U.S. law that sets up a screening process
by a military panel to determine whether a detainee is a Prisoner of War, illegal
combatant or something else. The administration has ignored it.
Instead of undertaking a screening process, which would include access to a translator
and at least some access to the military equivalent of a public defender, the
administration has simply declared by administrative fiat that all those at Guantanamo
are illegal combatants – no questions, no appeals, and don't protest because there's
a war on.
It is unclear whether the president or the defense secretary has the power under
U.S. law to make this determination with no access to judicial or legislative
review. I don't think either one does. I think they are required to follow U.S.
law and use a screening process – run by the military, not by civilian courts,
but at least involving an individualized hearing – before a determination can
be made as to the status of the Guantanamo prisoners.
EVADING THE GENEVA CONVENTION
One can certainly understand why the executive branch
would prefer that those at Guantanamo be classified as illegal combatants rather
than as prisoners of war. Under the Geneva Convention, prisoners of war are allowed
to refuse to answer any questions beyond name, rank and serial number. The captors
may ask the questions, but they are not supposed to be able to do more than cajole
if the prisoner refuses to answer. Threats or extra punishments are not supposed
to be allowed.
After the end of a war, prisoners of war are supposed to be released without prejudice,
so long as charges of war crimes or the like have not been lodged against them.
But U.S. authorities have not just admitted but made it clear almost as a brag
that one of the purposes of having the prisoners at Guantanamo is so that they
can be questioned as a source of intelligence about al Qaida and other suspected
terrorists. Although public statements have been somewhat cagey, there is some
evidence that interrogators have extracted some information from some prisoners,
perhaps leading to the capture, for example, of Jose Padilla – although other
reports suggest that the effort to extract useful information from Guantanamo
prisoners has been far from a roaring success.
But the whole idea of using the prisoners as sources of intelligence has unquestionably
been facilitated by declaring them illegal combatants rather than prisoners of
war who have certain rights under international treaties.
FURTHER LAW AVOIDANCE
There's another complication that would confront
any government that was seriously and conscientiously striving to be law-abiding
and faithful to agreements it has entered into. The Geneva Convention on prisoners
of war includes a provision to the effect that if there are questions or ambiguities
about the POW status of a detainee, the detainee is to be afforded all the rights
and privileges of a POW until the status is determined by an administrative or
So if the U.S. were conscientious about the convention, it would be treating all
prisoners as POWs, informing them that they have the right to answer no questions
beyond name, rank, and serial number, meanwhile conducting a systematic screening
process to get as many prisoners as possible legitimately classified (rather than
arbitrarily by legally dubious administrative fiat) as illegal combatants.
I have heard it argued that the provision on treating those of questionable status
as POWs until status is properly determined was added in the 1970s and the U.S.
never signed that part. Again, that may be legally defensible, but it is the argument
of somebody who wants to justify avoidance of law and treaty obligations.
I'm not a big fan of treaties. I wish this country would enter into very few of
them. But if it is going to sign a treaty it should take it with a certain degree
of seriousness. President Bush has decided to act this way with respect to Kyoto
treaty on global warming, announcing publicly that the U.S. doesn't consider itself
bound by it because the Senate hasn't ratified it (and would be unlikely to do
so if asked). That's the honorable approach. But to sign treaties and later decide
which provisions you'll abide by and which you will ignore is not honorable.
PASSION FOR SECRECY
Unfortunately, this pattern of avoidance of legal
responsibility, constitutional strictures and duly-entered-into obligations is
consistent with the passion for secrecy and the desire to avoid accountability
that has characterized the conduct of this still-unofficial war. Other U.S. government
actions betray the preference for convenience in doing whatever some official
wants to do rather than respect for law and proper procedures.
Jose Padilla, a U.S. citizen accused of wanting to plant terrorist bombs and arrested
at a Chicago airport, is being detained by the military with no access to a lawyer
and no charges filed. Yaser Esam Hamdi, also a citizen, is being detained under
On Friday U.S. District Judge Gladys Kessler did order the government to release
the names of the more than 1,000 people the government has detained without charges
(some have been charged with immigration violations or released, but the people
still have no clue how many are currently detained) since just after September
11. The government resisted the idea of being open to the people they are sworn
to protect and serve and may appeal this decision.
One of the aspects that should distinguish terrorists from civilized people is
concern for the rule of law, for using due process and proper legal procedures.
Certainly, if advocates of the war want to be taken seriously that the war is
being prosecuted, in part, to defend the concept of liberty under law against
an assault on the very concept of ordered liberty from barbarians who seek to
undermine those concepts – as many do – they should be especially concerned that
their own government is especially scrupulous, perhaps even bending over backward
to make sure our actions are legal and unassailable from a juridical point of
If we're careless about that distinction, U.S. claims to stand for civilized procedures
and the rule of law against a threat from lawless terrorists will carry little
weight among those capable of independent thought (perhaps a minority thanks to
government schooling) and willing to make the effort to think independently.
Instead, however, the administration seems to want to avoid legal "complications,"
going so far as to argue that it should be free to ignore U.S. law and the U.S.
Constitution in certain instances – even though it's difficult to see that it
even gives the U.S. much of an advantage in waging the undeclared war. One can
understand the impulse, but it undermines the moral standing of the United States
and invites other countries, in future conflicts, to treat captured Americans
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