Thursday, April 26, 2007

Closing the Bush Gulag

The greatest of the all the Cheney-Bush administration's scandals by far is what Al Gore has aptly called "the Bush Gulag", the network of prisons and torture centers of which Abu Ghuraib, Bagram in Afghanistan and Guantánamo are a part. As Jack Balkin put it at his Balkinization blog (Bush Justice Department Tries to Squelch Legal Representation at Guantanamo 04/26/07):
We should not forget this central point: The Justice Department is trying to do everything possible to prevent Guantanamo detainees from having any rights at all. It wants to get as close as it can to what it the Bush Administration sought before [the] Rasul and Hamdan [Supreme Court rulings] - a law-free zone. But the more the Justice Department tries to eliminate procedural protections and basic elements of fairness for the detainees, the more it undermines its argument that the detainees have a remedy that is just as good as habeas.

In fact, the Justice Department's argument about the adequacy of the remedy has always been disingenuous. The Bush Administration wants what it has always wanted - a legal black hole, a place where it can seize any non-citizen, declare them an enemy of the state and hold them without any means of redress. It wants, in other words, the very absence of law.

Although we have been momentarily distracted by the scandals over Alberto Gonzales, we should remember that the Administration's policies on detention and interrogation ... are the real reason why this Administration, and this Justice Department, have been such a disgrace to our country and to our traditions of government under law. (my emphasis)
I would definitely add the Iraq War to that "real reason", but the point is well taken.

Karen Greenberg takes a look at the practical steps a new President could and should take to shut down Guantánamo in
Can Guantanamo Be Closed? What a New President Could Do 04/26/07. Her advice would largely apply to the other stations in the gulag, as well.

The whole article is worth reading. She also gives a good summary of the political and legal traps running a torture gulag has created. You snatch a bunch of suspects, usually with little or no actual evidence. You fly them off to a law-free zone and sadistically torture them for years.

But then what do you do with them? Any evidence you do get is extremely likely to be tainted in some way by the torture and other misconduct they experienced in the Cheney-Bush legal Phantom Zone. And putting them on trial in any kind of remotely fair process brings the prospect of their being acquitted. Then you have to let people go who you've advertised to the world as the worst kinds of terrorists. Instead, you could keep them in the gulag and keep on torturing them and sending more prisoners there for the same, and more and more people get caught up in the spiraling dilemma.

Here's a sample of what she says:
How could a new president extricate us from this mess? The next occupant of the White House should start by accepting the following very American principle: Those who are not going to be charged with a crime should be returned to their home country, a third country, or the country where they were initially captured.

Behind this principle lies a reality which must also be accepted. The current Guantanamo debacle has little to do with the rule of law, the Geneva Conventions, or even, for that matter, a realistic assessment of the more pressing terrorist threats to the United States. At its heart of hearts lies a simple fear of political embarrassment.

U.S. officials have consistently held that they are guarding vital national security interests by keeping the never-to-be-charged detainees in custody. However, the sad truth is that, when it comes to most of these prisoners, what's really been at stake is the administration's need to save face by concealing its utter ineptitude. Privately, even Bush administration officials will acknowledge that the detainees were captured and sent to Gitmo capriciously. Rather than housing the "worst of the worst" (as the administration has regularly bragged), Gitmo penned up the easiest to grab, especially in Afghanistan. Often these were simply the individuals that local bounty hunters could provide or who were found on or near the battlefield. Many were put on planes to Guantanamo based on nothing but an American unwillingness to assert with confidence that they would never be a threat to the United States. Instead of masterminds, whatthe Bush administration netted were cooks, chauffeurs, wanderers, the mentally deranged, and - sometimes - children.

When an administration defiantly adverse to ever admitting error decided not to send home those who had been seized by mistake, it set itself a trap that it has been unable to escape to this day.
She also deals with the inevitable question, what if some people go back to terrorism (or start practicing terrorism for the first time) after they are released? Her answer is basically: deal with it. As she puts it:
It is time to return to a system in which terrorists are tried in courts based on actual evidence. Unless this principle is accepted, Guantanamo won't be closed because there will always be U.S. prisoners who can't be tried and will never be freed.

A corollary to this that must be accepted is: There can be no absolute guarantee that some of the 160 former detainees, once freed and returned, won't commit acts of terror. But in the exponential growth of terrorist threats in recent years, particularly in the wake of the Bush administration's war in Iraq, a few of these small fry simply don't add up to a significant menace. After five years of interrogation, incarceration, and often long periods of isolation, many of them are, in any case, now deemed broken men. If any of them do prove threatening, let them be captured anew and tried for actual acts or plans on any of the many legal grounds available to law enforcement.
Essentially, the argument that we can't let anyone go that Dick Cheney thinks might someday somehow be dangerous is really the argument for tyranny that I suppose is as old as tyranny itself. The good people are in danger, and the government has to act in a lawless way to protect the good people from the evildoers. Then the lawless "protection" starts the cycle I just described - you can't convict them of a legal offense because you resorted to lawless (govermental) Terror and torture to deal with them; but they might be more dangerous now because of the way they were treated; so you have to keep on enforcing the lawless protection on more and more people. And on it goes.

The bottom line is that the next President has to restore the rule of law in place of the torture policy and the Bush Gulag.

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