How Long?

by

by hilzoy

From the Washington Post:

“A divided judicial panel ruled this morning that about 400 foreign nationals who have been detained for as long as five years at a military prison in Guantanamo Bay, Cuba, do not have rights to challenge their indefinite imprisonment through the U.S. court system.

In a 2-1 decision, a panel of the U.S. Court of Appeals for the District of Columbia found that Congress’s 2006 Military Commissions Act firmly blocked detainees from trying to appeal the president’s decision to hold them without charges and without any promise of release.

Attorneys representing the detainees plan to appeal to the Supreme Court, and a group of Senate Democrats introduced legislation last week that would restore some of the detainees’ rights.”

Marty Lederman has a good discussion of the decision here. I’m not really competent to discuss it: a lot turns on who, exactly, has habeas rights, whether the Suspension clause of the Constitution should be read as a protection of individual habeas rights or as a prohibition on Congressional action, and other topics that are above my pay grade. Thus, the fact that I found the dissent much more convincing (and I don’t think it’s just because I agree with its conclusion; it’s better reasoned) probably means very little.

Here are two points that are not above my pay grade. First, the majority holds that the Constitution does not protect aliens held by the US government, in places (like Guantanamo) which the US government fully controls. I do not believe that this is accurate. But if it is, then we should amend the Constitution. Our government should not be able to make people vanish into a prison that it fully controls but that our courts cannot touch; and if the Constitution does in fact allow this, then the Constitution should be changed.

Second: I appreciate the need for thoughtful review of legal cases. Nonetheless, it’s just astonishing to me that no one in our government seems to have any sense of urgency about these cases. There are people in Guantanamo who have been there for five years without any remotely adequate proceeding aimed at determining their guilt or innocence of any crime, or any act of hostility against the US. Many of them were arrested far from any battlefield. In some cases, they were sold to us by people interested in collecting bounties. They have been held for years without being able to communicate with the outside world, sometimes in appalling conditions: solitary confinement, for instance.

It is past time for someone in our government to say: enough; we need to either try these people or let them go. Keeping people in prison without charges for over five years is not acceptable in a country that claims to respect the rule of law.

I realize that the courts are probably not the body to do this. Still, as I read that the detainees’ rights have been denied yet again, that another appeal is expected, that it probably won’t happen during this Supreme Court term, and so on, I kept thinking of Sabin Willett’s clients, whom he described here (pdf):

“The January 15 meeting was my third meeting with Abdusemet. In previous meetings he had struck me as a kindly man, quite gentle, pleasant in affect, calm, and prone to smile and laugh. On January 15 he appeared extremely anxious. His foot tapped the floor uncontrollably. His affect was deeply sad. He refused offers of the food we had brought. He appeared to be in despair.

He said Camp 6 was “the dungeon above the ground.” He said that when they led him into Camp 6, he recalled a movie he had once seen aout a Nazi concentration camp, “a place where, when they take you in, you never come out.” (…)

Abdusemet asked us to communicate a message from one of the other Uighurs on his pod to his wife: “Tell her to remarry. She should consider me dead.” (…)

Abdusemet advised that one of the other Uighurs on his block was “hearing voices,” and had been shouting out indiscriminately. Abdusemet said the man had been punished by being forced to wear the orange jumpsuit.

Abdusemet said, “I am starting to hear voices, sometimes. There is no one to talk to in my cell and I hear these voices.””

And I wonder: how long are we going to leave them there? How long will they have to wait, alone, listening to the voices in their cells? How badly will they have been damaged by the time we decide to let them out? How will they even begin to put their lives back together?

And how can we hold up our heads knowing that our government has for years devoted its considerable resources and ingenuity to depriving them of one of the most elementary legal rights: the right to ask the government to explain, before a judge, why they have been imprisoned?

49 thoughts on “How Long?”

  2. You’re analysing this from an American point of view.
    Try to imagine what this looks like to the rest of us – your country has asserted the right to kidnap any of us from our homes and lock us away forever – and your much vaunted commitment to civil rights and so-called justice system will let him.
    Contempt is such an inadequate word at times.

  7. There’s going to be a pile-on here, but before that occurs, I would just point out that Castro imprisoned within Cuba (who I think were Cuban citizens), we picked ours up from outside of the country, which makes things a wee bit different. If you’d like to work on improving things for them, I’d urge you to do something like join Amnesty international, and then you could write letters to prisoners like Izquierdo and Pulido, which might be a better use of time.

  9. I would call and complain to my Congressmen — except that I just moved from Mass. back home to Alabama. My Democratic Rep. might be OK, but the Senators would just laugh in my face.
    Still, I’m tempted to call up the Senators and tell them what an embarrassment they are. I dream of the day when the Libertarians are in the majority, the Democrats are in the minority, and Alabama’s Senators are in the party leadership for the GOP sub-subminority of three or four.

  10. Phonecian,
    If I have contempt for how low American traditions of justice have been brought, I can only imagine how bad the rest of the world must see it. I don’t want to overdramatize — Goodwin’s law and all — but any time I wonder how a whole culture could lose its collective mind such as Nazi Germany, I only have to look around me. Mind you, I don’t think we’re headed there (had the ’06 elections turned out differently, I’d seriously have worried) but we’re not headed there by happenstance and foresight of the Founders, not by any common sense possessed by the American public. Who can blame my compatriots? Worry about legal niceties is so much work, and it’s so hard to concentrate when American Idol is on!

  11. Thank you, DaveC, for reminding us that the US government has now lost the moral high ground to Fidel Fucking Castro, of all people. What do we wanna shoot for before we call it quits? Pol Pot, maybe?

  12. “Yet where is the outcry against the Castro regime…”
    DaveC: You might have a point if Castro had been pretending to a democratic form of government with a justice system ostensibly based on the rights of the individual.

  13. and here, but not so much here.
    I guess they’re very busy concerning themselves with the actions of their own government. Can’t for the life of me see why that could be a higher priority in someone’s life.
    Btw, I haven’t read any comments from you, DaveC, about the bad things happening in Burma that have been going on for decades. Obviously this indicates you don’t care or have some sort of ulterior motive for not talking about it.
    That’s a shame.

  14. Screw Castro. That’s a distraction for the feeble minded.
    This is OUR government that’s acting like tyrants. That’s OUR responsibility. That’s OUR log that’s in OUR eye.
    Adults have to take care of our own messes. I’d like to act like an adult.

  15. based on a quick skim of the posts/articles (I was busy today), it looks like the Gitmo/control issue is botht he most important and the most egregious. the idea that our essentially permanent colony just off the florida coast is akin to a military camp in, say, 1944 germany is just ridiculous.
    but that seems to be the foundational assumption upon which the result rests

  16. The commentariat pooh-poohed Charles’s post about Chavez and Chomsky yet here we are after Chavez waved Chomsky’s book around and banged his shoe on the podium at the UN. (Well no, he called Bush the devil, which is more pleasant and generally agreeable to those who time and time again call Bush the devil)
    Folks around here said “well I don’t like him”, etc., but that was it. There was more enthusiasm in attacking Charles Bird than for supporting freedom. And now we have Chavez in power for the next 25 years and throwing grocery store owners in prison for asking for a fair price for their merchandise.

  17. I thin that the ObWi commentariat agrees with this.

    What can leftists learn from Chavez’s UN speech and its aftermath? That the U.S. is the world’s most egregious rogue state. We already knew that and, in fact, so does most everyone else. That Bush and Co. engage in repeated acts of amoral, immoral, and antimoral behavior such as a devil would enact, if there was such a thing as a devil. We already knew that too. That the emperor has no morality, integrity, wisdom, or humanity. We knew that as well.

    I don’t think that I am far off in my assesment. Perhaps 30 or 50 years from now, the people of Venezuela will thow off the chains of totalitarianism, but it has been 50 years now in Cuba, and it aint happened yet.

  18. If the Dodd-Menendez bill restoring habeas rights (S. 576) were to pass, say, this spring or summer, what would the effect be?
    Would that just make it a much easier decision for the Supreme Court? Or would it actually make it possible for the legal challenges to the prisoners’ detention to begin, without the excruciating delays of the appeals process?
    Either way, the bill must pass. Every day that the abomination of the MCA stands deepens the stain. But it’s agonizing to think that repealing its worst aspects might have the effect of lengthening the Guantanamo detainees’ ordeal.

  19. DaveC, if you’re okay with the Bush/Cheney policy on detainment, as you apparently are, why are are you so worked up about Latin American regimes in this particular regard? What do you care about indefinite detainment and the suspension of rights, anyway? (Other issues might still matter, but demonstrably you don’t care about it at home, and why go bother foreigners over something that you don’t see as relevantf or Americans?)

  20. Dave, you summarize these long posts with long comments threads (291 for this one!) using offhand generalizations that sound something like
    Christians believe in some book called a Bible that talks about being nice to your neighbors and not fighting back
    It not only doesn’t help with the discussion, it also gets you treated with a fair amount of disdain that I wish you wouldn’t be on the receiving end of, not because I agree with your take, but it just isn’t very helpful. People are already turning you off, and while one can defend someone when they are attacked, one can’t really defend someone when they are ignored.

  21. DaveC, the chances that the Cuban intelligence services picks me (an Austrian citizen) up and vanishes me into some sort of gulag ist ZERO.
    The chance that the CIA somehow thinks that I’m involved in AQ is non-zero (they *have* made such mistakes in the past), and they have kidnapped EU citizens in the past.
    Plus my job forces me to travel to the US every other year, whereas I’m free to ignore Cuba.
    Do you need any more reasons why the US’ human rights record concerns me more than the Cuba’s?

  22. The commentariat pooh-poohed Charles’s post about Chavez and Chomsky yet here we are after Chavez waved Chomsky’s book around and banged his shoe on the podium at the UN.
    ::deep breath::
    DaveC,
    How is that at all relevant the the discussion at hand? What does the fact that Chavez waved a Chomsky book have to do with the fact that the Executive branch goes into other countries and take people, imposes stress techniques (to use the parlance of our times) designed to cause psychological damage. So I have two general questions that I hope will get us back on track:
    Can the President of the US go into any country and grab anyone they want detain them for as long as they want in a secret prison and not notify anyone nor bring charges before a US court. I’ll even concede it if they were taken from Iraq or Afghanistan (war declaration and all), were talking places like Canada and Europe?
    If the US can do it, can any other countries do it. Can the Chinese, for example, sneak in agents under diplomatic cover and take Americans that are working against their interests or plotting violence against them?
    If the answer for each is different, why?

  23. Nell, obviously congressional restoration is preferable to Supreme Court reversal, in the short run. In the long haul, we’re better off having it clarified that our Constitution prevents our government from engaging in tyrannical acts, wherever they might take place. So I’d like to see reversal, while we have 5 votes for it (as I believe we have).
    I’m sorry that the people of Cuba and Venezuela don’t have the opportunity we have to reverse this kind of thing. In both cases, the US bears a small share of responsibility for this — a small share — because our foreign policy has empowered the elements in the governments of both countries that would deny rights of the individual. If one wanted to try to change things in these countries, one would start by thinking about how our policy is counterproductive, and whether changes in policy might help, in some small way, on the ground.
    DaveC doesn’t appear interested in the least in improvement of the lot of the individual in these countries, but rather in fighting the real enemy: those damn libruls, wherever they may be.

  24. hilzoy:how long are we going to leave them there?
    At least until GWB leaves office.
    How long will they have to wait, alone, listening to the voices in their cells?
    See above.
    How badly will they have been damaged by the time we decide to let them out?
    As badly as GWB wants them to be.
    How will they even begin to put their lives back together?
    They won’t.
    This has been another edition of simple answers to simple questions.

  25. today, the part of bril will be played by DaveC.
    And how can we hold up our heads knowing that our government has for years devoted its considerable resources and ingenuity to depriving them of one of the most elementary legal rights: the right to ask the government to explain, before a judge, why they have been imprisoned?
    we can’t. BushCo is a loathsome quasi-criminal stain on America. Worst President Ever, by a mile.

  26. I’m not a lawyer, but it seems to me that Gitmo is not beyond the realm of US law for the purpose of a Marine serving there being charged with a court marshal offense, but it is beyond the realm of US law for the detainees.
    My inability to grasp what distinguishes the two is why I am not a lawyer.

  28. From Randolph Fritz’s link:
    “So delicious Fafnir,” says Galactus. “Mighty Galactus cannot devour just one.” As of this writing Amnesty International remains completely silent on the issue of Galactus.
    Where do you stand on the Galactus issue, DaveC?

  29. On top of all else, the policies the Administration is defending seem completely counterproductive in terms of actually fighting terrorism.
    Terrorist networks are multi-national organizations. Effective anti-terrorist policy has to involve substantial cooperation with many other countries. Yet the Administration seems to care not at all whether it alienates the rest of the world, or whether others find us trustworthy. Just read the comments by Piator and Otmar. How bad are things when an ordinary Austrian citizen is a bit uneasy about visiting the US?
    I think we are made less safe by these mindless go-it-alone, tough-guy policies.

  31. “How bad are things when an ordinary Austrian citizen is a bit uneasy about visiting the US?”
    Most of my non-American friends have been making such observations, and expressing such fears and concerns, about travel to the United States, for several years now.
    As well, tourism is way down, and so is foreign business travel to the U.S., and students applying to study here, last I looked.

  32. “but it seems to me that Gitmo is not beyond the realm of US law for the purpose of a Marine serving there being charged with a court marshal offense, but it is beyond the realm of US law for the detainees.”
    I’m not defending or attacking the idea that Guantanemo is or is not “US soil”, but this particular objection is easy. A Marine can be court marshalled for actions pretty much anywhere he finds himself. If he he rapes someone in Japan for instance, he could be court-marshalled, and no one would say that Japan is under US sovereign control.

  33. “As well, tourism is way down, and so is foreign business travel to the U.S., and students applying to study here, last I looked.”
    A huge portion of that is a non-reputational things:
    Visas are noticeably more difficult to get under the post-9/11 regime.
    By the way, does anyone else think that the readable passport chip has some nasty terrorist implications? Awfully handy if you want to make a bomb that will sit around and only explode when a travelling American is nearby.

  34. Awfully handy if you want to make a bomb that will sit around and only explode when a travelling American is nearby.
    Is that actually easy to do?
    I’m not up on signalling tech at all, but that strikes me as a fairly sophisticated system, if it’s supposed to be automated. You need something that randomly or constantly scans RFID chips, sorts out the ones that are US passports, possibly also has a proximity sensor, and *then* signals the bomb to blow up.
    Is that kind of tech generally available? Is it easy for a geek to self-rig?

  35. Just to be clear, I intend this as a “yes, and” sort of follow-up.
    Sebastian, my foreign friends who are now declining to come to the US if at all possible cite the difficulties with visas as part of the overall problem, founded on the attitude of hostility and suspicion toward anyone not just like the inspectors. Gratuitous restrictions, haphazard administration, and capricious enforcement blend together into a single package that, they say, makes them feel unwanted in the first place and very much at everyone’s mercy in the second place if they come anyway.

  36. The worry was not triggering bombs, the worry was that people would steal your passport data. Here’s a WaPo column and two wired articles (2nd here). I like this part from the last one
    “Either this guy is incredible or this technology is unbelievably stupid,” says Gus Hosein, a visiting fellow in information systems at the London School of Economics and Political Science and senior fellow at Privacy International, a U.K.-based group that opposes the use of RFID chips in passports.
    “I think it’s a combination of the two,” Hosein says. “Is this what the best and the brightest of the world could come up with? Or is this what happens when you do policy laundering and you get a bunch of bureaucrats making decisions about technologies they don’t understand?”

  37. “I’m not up on signalling tech at all, but that strikes me as a fairly sophisticated system, if it’s supposed to be automated. You need something that randomly or constantly scans RFID chips, sorts out the ones that are US passports, possibly also has a proximity sensor, and *then* signals the bomb to blow up.
    Is that kind of tech generally available? Is it easy for a geek to self-rig?”
    Easy to do right this second? No, though I think do-able with work. Easy to do five years from now with the government responding to the change in technology with its characteristic speed? I have no doubt.
    “The worry was not triggering bombs, the worry was that people would steal your passport data.” Sure, that is what they are worrying about! I’m allowed to worry about other things. 🙂

  41. Bruce Schneier. He and Karen Cooper used to buy me dim sum whenever they came to NYC, back in the Nineties; known them for decades.
    Of course, I’ve known Randolph slightly for quite some time, as well. 🙂
    RFID tech was one of Bruce’s obsessions even back in the twentieth century.

  42. Perhaps 30 or 50 years from now, the people of Venezuela will thow off the chains of totalitarianism,
    Wikipedia:
    “The Venezuelan president is elected by vote, with direct and universal suffrage, and functions as both head of state and head of government. The term of office is six years, and a president may be re-elected to a single consecutive term.”
    “Chávez was elected President in 1998 on promises of aiding Venezuela’s poor majority, and was reelected in 2000 and in 2006.”
    “Responding to the stalling of his legislation in the National Assembly, Chávez scheduled two national elections for July 1999, including a referendum for and elections to fill a new constitutional assembly. The Constitutional Assembly was created when the referendum passed with a 72% “yes” vote, while the pro-Chávez Polo Patriotico (“Patriotic Pole”) won 95% (120 out of the total 131) of its seats.”
    “General elections were held on July 30, 2000. Chávez’s coalition garnered two-thirds of seats in the National Assembly while Chávez was reelected with 60% of the votes. The Carter Center monitored the election; their report stated that, due to lack of transparency, Consejo Nacional Electoral (CNE; “National Electoral Council”) partiality, and political pressure from the Chávez government that resulted in early elections, it was unable to validate the official CNE results.[33] However, they concluded that the presidential election legitimately expressed the will of the people.[34]”
    “Finally, after opposition leaders submitted to the CNE a valid petition with 2,436,830 signatures that requested a presidential recall referendum, a recall referendum was announced on June 8, 2004 by the CNE. Chávez and his political allies responded to this by mobilising supporters to encourage rejection of the recall with a “no” vote. The recall vote itself was held on August 15, 2004. A record number of voters turned out to defeat the recall attempt with a 59% “no” vote.[54][55] The election was overseen by the Carter Center and the Organization of American States, and was certified by them as fair and open.[56] European Union observers did not attend, saying too many restrictions had been placed on their participation by the government.[57]”
    “Chavez again won the OAS and Carter Centre certified national election on December 3, 2006 with 63 percent of the vote,[89] beating his closest challenger Manuel Rosales who conceded his loss on December 4, 2006.[90] After his victory, Chávez promised a more radical turn towards socialism.[91]”
    Oh, yeah, that sure sounds like totalitarianism. Face it – Chavez is in power in Venezuala because he’s more popular there than Bush is in the United States. By no means is his government perfect, but compared to the average Latin American regime, Venezuala looks like fucking Canada.

  43. The detention of aliens is something I knew a lot about back in law school when I was trying to get Mariel boatlift Cubans released from Lompoc pending a deportation that was never going to happen. While intervening years have clouded my remembrance of the cases, this much is clear:
    the writ was intended to restrain the actions of the US government, unless suspended.
    Given the conduct of the British during the Civil War, the notion that the Framers would have contemplated that the USGovt could lawfully detain anyone in jurisdictional black holes beyond the reach of the writ is laughable. The best that the majority could do in the DC case was find that extraterritorial application of the writ was hard to enforce, so courts were reluctant to try. So? We have planes and ships that are not limited by the direction of the wind now.

  44. Depressing. But inevitable given the judges on that panel, so it’s good that they finally ruled.
    Everyone read Justice Kennedy’s concurrence in Rasul & pray for his better angels and Justice Stevens’ health….

  47. “RFID tech was one of Bruce’s obsessions even back in the twentieth century.”
    I just noticed that I’d switched there to referring to Bruce Sterling, without the faintest external clue; anyhow, that’s who this comment refers to.

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