August 6 , 2002
One 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 conflict.
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 enforceable concept?
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 judicial process.
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 similar circumstances.
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 view.
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 similarly.
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