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June 27, 2006


And so, when the government and its allies assured us that the prisoners in metal cages and orange jumpsuits were "trained killers", "the worst of the worst", "the kinds of people who will chew through the hydraulic lines of an aircraft...the Hannibal Lecters of south-west Asia," a small handful of lawyers responded: "prove it."

Well: it never occurred to me that they were just simply lying about this. (This was January 2002, after all, and I hadn't yet got to the point where I just assume that if Bush or Cheney is saying it, he's most likely lying.) I did assume that the prisoners being sent to Guantanamo Bay were prisoners of war, taken fighting against the US, just as the Bush administration were claiming: that was later, as the individual histories began to come out, and it was clear that some of them at least - how many didn't become clear till later - were innocent kidnap victims.)

What I did say - consistently - was that if they were prisoners of war, taken "on the battlefield" as the Bush administration claimed they were each individually entitled to a tribunal under Article Five of the Geneva Convention:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
The claim made (and still being made, by some Americans) that "if any doubt arises" means that if the Detaining Power is certain that their prisoners don't belong under Article 4, the Detaining Power doesn't need tribunals, bemused me - because no matter how truthful, just, or experienced a judge is, s/he still doesn't get to sentence accused criminals without going through the proper process.

And it was evident from the very beginning that no prisoner sent to Guantanamo Bay was receiving either the protection of the Geneva Convention due him as a prisoner of war, or the proper process required to define a combatant as not a prisoner of war: news reports and a single reading of the Geneva Convention told me this, and I'm not a lawyer.

I remember the very early reports of how prisoners...illegal combatants...Taliban and passers-by...whomever were being treated in Afghanistan, and knew we were no longer a civilized legitimate nation.

The ones in Guantanamo are the lucky 1 in 100. The rest no longer need lawyers.

Well, I'm sure there were people besides the Rasul attorneys who were quicker on the uptake than me; "the rest of us" was not literal. The foreign press sort of flipped out right at the beginning. And yes, the failure to apply Geneva played a big role in their thinking as well.

I forgot to mention: I think the reason the book is being released today is that this is the last scheduled day of the Supreme Court term, and was deemed the day they are most likely to issue Hamdan v. Rumsfeld, about the legality of military commissions under U.S. law (including Geneva) & about whether the Graham Amendment applies retroactively. The Supreme Court can always extend their term, but they usually don't. So if it comes out today, consider this an open thread on that subject.

Katherine, I really don't think that in January 2002, anyone outside Afghanistan/the higher echelons of the military or the Defense department, could have supposed the enormity of what was being done in Afghanistan - that people were being kidnapped for the bounty that the US military was paying, and the "evidence" that they were al-Qaeda or senior Taliban was shaky or none. And I remember conceding to an American friend who felt that in times of risk shortcuts were allowable, that if the US military felt it was safer to carry out the "competent tribunals" in Guantanamo Bay, that was acceptable enough.

It did appear that the early news stories about the Guantanamo Bay prisoners were targetted at the US public with the intent of making them believe their leaders were on the ball in the fight against terrorism, locking up "the most dangerous" of them in conditions that no Red Cross observer could approve, plainly violating their rights under the Geneva Convention. I don't think that it occurred to the publicists to think about how these news stories would play outside the US.

Nor do I understand even now what Bush & Co hoped to accomplish by setting up Guantanamo Bay at such vast expense to so little purpose. It's a terror threat, yes: "Talk or you go to Guantanamo Bay and you never get out". It's a threat worldwide that the US has this gulag where people can be imprisoned forever beyond the reach of any judicial system. But the kidnapping of innocent men to fill Guantanamo Bay was such a pointless horror - an act of gross stupidity, as well as a crime.

To know Joe is to respect him.

To riff on Jes' 8:52, a client of mine was told he'd better talk, or he'd be sent to a place where God Almighty could not find him. He thought this a challenge to God, and that giving in to such a threat would be sinful.

This was on SCOTUSBlog yesterday:

(NOTE: The next decision day will be Wednesday, the Supreme Court announced. Five decisions remain (see below). Presumably, Chief Justice John G. Roberts, Jr., will announce on Wednesday when the Term will end. The fact that he did not do so Monday indicates that there will be opinions on both Wednesday and at least one other day -- Thursday, Friday or Monday.)

To chime in: in yet another illustration of why I so often turn on CSPAN while eating lunch, I turned on CSPAN the other day and saw Margulies talking at a bookstore. He was incredibly impressive on a lot of levels: intellectually, morally, but also for his absolute unwillingness to make this more political than it is. There were conservatives in his audience, and they asked him some sharp questions, and he did a dazzling job of dismantling their factual assumptions while completely refusing the idea that this was a liberal/conservative or Democrat/Republican issue, as opposed to an issue of American values, and/or an illustration of our general tendency, in times of crisis, to overreact and then regret it (Japanese internment, WW1, etc.)

Katherine's recommendation would have been enough for me, had seeing him not already convinced me that I wanted to read whatever this guy said. He was that good.

Well crap, now I have to add another book to the giant pile sitting next to my bed. Thanks for the pointer Katherine.

Thanks, Katherine; duly ordered. (Needed to round out my Amazon cart anyway.)

I listened to the Fresh Air interview last night. OK, another book to read.

Perhaps in another 30 years we will look back on the Guantanamo era as a variation on the WWII internment camps, and hopefull there is no modern Supreme Court opinion that prallels the Korematsu decision, but I dont know how hopeful we can be of that.

Unfortunately, dm, some would argue that there is still a historical revisionism about the internment camps. I'm not speaking of Malkin's retreading of Baker and Lowman (though there is that too), it is the notion that the courts were fooled into supporting the internment. Of interest (though I have linked to this before, so apologies if you read it the first time) is Jerry Kang's paper. Here's a bit from the abstract

Yet, a dark side to this victory has never been discussed, until now. In granting the petitions, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. Specifically, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by conniving officials in the Departments of War and Justice, who suppressed smoking gun evidence. But this tidy story is nonsense. The wartime Court was no innocent. It was a full participant in the internment machinery, and it deployed its enormous intellectual resources to avoid interfering with the internment, while at the same time, never granting it official approval. The Court also made certain that blame would fall not on President Franklin Delano Roosevelt or on Congress, but instead on the little known War Relocation Authority, which was labeled a rogue agency. This is what the Court did in the 1940s, exploiting procedure-like tools often extolled as passive virtues. The Judiciary has never accepted responsibility for its machinations. After the coram nobis cases, official history has been rewritten to make any apology simply unwarranted. In this way, the personal victories of Korematsu, Yasui, and Hirabayashi were ironically exploited to complete the circle of absolution the Supreme Court began in the 1940s. This Article provides a more nuanced and disturbing interpretation of the internment,the Judiciary, and the coram nobis cases. It also sheds critical light on discussions of military exigency, racism, the role of the Judiciary, and the lessons of history in a post September 11 world.

Also of note is Judge Gleeson's decision as a reinstatement of the notions of internment of aliens, blogged by Eric Muller here

Gleeson's opinion is bad.

More legally defensible as far as precedent, but equally bad as far as result are the state secrets privilege decisions, which will probably eventually go up to the Supreme Court.

An awful lot is riding on the shoulders of Anthony Kennedy & the continued good health of John Paul Stevens.

Tipped off by an email message from Katherine, I ordered the book a few weeks ago, and it came sooner than I'd expected.

There are now quite a few books about the current morass of process-less detention, abuse, and torture. I've read several of them (by no means most; focusing on the topic for any length of time takes me down very far). Of those, this book is the one to get, and to give friends and co-workers.

Thanks also for the pointer to the interview, Katherine. I came back from town just in time to catch the end of it, and my partner, who's much more of an NPR listener than I am, said it was the best thing he'd heard on the subject. It was a thrill to be able to hand him the book and say, "This is the guy."

This subject is a hard one for Americans to face. Writing about it in a non-tendentious way, being able to hold readers who want on some level to be able to close their eyes and make this all disappear, demands a lot of skill and intelligence. The appreciation Margulies expresses for Katherine's work won't surprise ObWi readers. Thanks very much to both writers.


did you finish? very glad you liked it.

you should write an amazon review--no one has yet.

Kathryn - I met Joe Margulies in Texas in February 2000 at the women's death row. I was visiting his client, Bettie Beets, and then met him after the visit in the parking lot. I am always grateful to him, our champion. I've been following this Guantanamo legal battle online and I'm not surprised that Joe took the fight early on. It makes sense once you know how Texas law mishandles prisoners. - Mary Robinson, Seattle

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