Gyroscope

A newsletter for those unmoved by spin.
No. 38, May 3, 2004

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by John Nordin
Your friendly interrogator
"The interrogation process itself (at Guantanamo) provides the opportunity for an individual to explain that it was all a mistake," [Deputy Solicitor General Paul] Clement, arguing before the U. S. Supreme Court in Hamdi vs. Rumsfield, April 28th. Slate.

This was one strand of the argument made by the Government in contending that the President has relatively unfettered power to detain an American citizen at any time, at any location for as long as the undefined 'war on Terror' should last.

Yes, you don't need to worry if the government should 'detain' you inappropriately, because 'while you are being interrogated' you can just say "hey, I'm innocent," and the army will let you go. While you are being kept awake at night, yelled at, forced to sleep in cold rooms without a blanket, interrogated in teams by people who take on widely different and disorienting personalities, given fake acts of kindness to throw you off, while you are being watched as you use the toilet and while you have to hope you will get fed, you can just explain it all. And you don't need an advocate to organize your arguments, don't need a chance to research your case, and you certainly don't need witnesses and a chance to challenge evidence. You can rely on the good will and fairness of our military - on the battlefield.

Just in case you think this quote is taken out of context, read this exchange.

GINSBURG: "Suppose the executive says mild torture we think will help get this information. It's not a soldier who does something against the Code of Military Justice, but it's an executive command. Some systems do that to get information."

CLEMENT: "Well, our executive doesn't."

GINSBURG: "What's constraining? That's the point. Is it just up to the good will of the executive? Is there any judicial check?"

CLEMENT: "This is a situation where there is jurisdiction in the habeas courts. So if necessary, they remain open." CNN

Of course, I'm willing to acknowledge that Clement probably knew as little of what was going on at that prison in Iraq as the rest of us, but still could there have been a more absurd contention on its face?

And I am sad to say, very sad, to say, that this questioning by Ginsburg is about as rough a time as Clement got.

Justice Sandra Day O'Connor, for example, asked Clement why "a neutral decision maker of some kind" could not be provided to determine whether a detainee is being properly held. "Is that so extreme that it should not be required?" she asked.
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Clement replied that the military's initial screening of potential detainees, sorting those who should be held from those who need not be, already met that requirement. "For all intents and purposes, that is a neutral decision-maker," he said. IHT

And that was that. No justice raised the obvious comparison to the domestic police:

"If you argue that the military can be trusted as a neutral arbitrator of the facts, why should we not also think the police were neutral when they interrogate suspects? Why should we not also allow the police to hold people based on their own word? Why require courts for anyone at all?"

And there is the obvious, ill-tempered extension:

"Just what part of democratic theory don't you get? Did you not grasp that separation of powers is fundamental to our system of checks and balances? Do you really propose that there can be any power in a democracy that is not held accountable for its actions?"

There are good minds on the Court now, but there is no Justice Douglas, no Hugo Black - no passionate defender of what makes this democracy a free country. I really fear for the results of these cases.

In past wars, the armed forces have captured all manner of enemy combatants, held them to the end of the war and then repatriated them. The assumption is that the war has a definite opponent who engages in active military efforts against us, and that the war will have a definite end. Neither assumption fits how the administration views this amorphous war on terror. It takes place everywhere, anyone can be the enemy and it has no end. That last is key: the war on terror has no end because terror is a technique, not a group. Terror can not be ended because there is no group who will surrender that would include everyone who could be a terrorist. No land can be occupied that is all the land the terrorists would hold. No entity or power can surrender on behalf of every human who might at some day become a terrorist.

The principle here is crystal clear. If the government can detain you, an American citizen, and deny you your day in court, our democracy is over. Finished. Why not detain a columnist for spreading 'dissent' or a judge for ruling to set a suspect free. Why wait until the threat is made good, better to act before the crime is committed. If you think this is exaggeration or scare-mongering, then consider this: find a government in the history of the world that has had the power to detain people without trial and has not used and abused it. The principle is clear: in a democracy, there is no power without accountability.

And if the principle is not enough evidence, lets consider what we have learned about the exercise of that power in Iraq in recent days.
School of democracy: Abu Ghraib
"sadistic, blatant and wanton criminal abuses" U.S. General Antonio Taguba characterization of the Abu Ghraib prison, as quoted by Seymour Hersh. CNN
"Since last fall, the Army, the high level in Iraq and certainly in Washington, knew there were problems in the prison system. His was the third major study done of the prison system. And he just was, I have to tell you, to the credit of the general, very straightforward." Seymour Hersh

Remember the government's point above - the interrogation process can sort this out?

"And according to the Taguba report, more than 60 percent of them had nothing to do with the insurgency or any trouble against Americans. They were just people picked up in sweeps.

And Taguba is really very incensed that the inability of the Army's system to weed out those who are dangerous from those who are not. They just simply weren't doing it. So, people would get into the system, picked up at a roadblock for example, thrown in there." Seymour Hersh

While Bush has issued a statement condemning the abuses, Bremmer in Iraq apparently has not (so says the PBS News Hour). Nothing much has happened, no act of contrition, no recompense. It was, after all, "just a few bad apples." But it wasn't: not a few low ranking simple kids who got into some hijinks and let things get out of control. Many people knew, this was the plan, not the accident.

... military spokes woman Col. Jill Morgenthaler said yesterday that the soldiers facing courts-martial did not receive in-depth training on the Geneva Conventions, which govern the handling of captives." Seattle Times, May 1, p. A9

How much training do you need to grasp that making people simulate sex acts with each other is not the right thing to be doing?

But then, how much training do you need not to reuse Saddam's prision? Let us just spare a moment for that: this took place in the most notorious of Saddam's prisons, where many many people were tortured and killed. And we just took it over and used it as our own. Could you imagine something more stupid to do? Something more calculated to pass the message that the new master is to be feared like the old master was? We should have used our weapons to blow the place up - on national Iraq television - with a proclamation that we would pay for a plaque, a memorial, and flowers for a year for everyone killed there. Bremmer should have stood at the side and shook the hand of every grieving relative, looked into their eyes and promised that it was over, the Americans are here.

That's what we should have done if we really cared to pass the message that we are different, we are liberators, we believe in democracy and we will carry its liberating gift to the ends of the world. But, if what we want is permanent bases and enough oil to bully the Saudi's into moderating their price, then, who cares about some naked Iraqi men anyway?
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