GITMO, THE AMERICAN GULAG - DEVALUES U$ JUSTICE

 

By

Joseph Chez

 

February 15, 2013

Consider if you will what the consequences would be for the nation and to the rest of the world, if US currency would only have the assigned monetary value, only within its borders and only have value for American citizens? Certainly, such scenario would be inconceivable at best, because, such policy would make the American monetary system unworkable in a global symbiosis. Better yet, this make-believe portrayal could only be considered as appropriate by foolish individuals having a deficit-understanding of the profound consequences such policy would have, domestically or internationally, right?  Yet, that is exactly what the Bush Administration implemented immediately after the 9-11 terrorists attack on US soil.  However, the policy devaluation scheme was not done with the US dollar – it was done with the judicial system. 

The American judicial system, although not perfect, was designed to strive to reach the highest ideals and standards of the rule of law. In theory, as originally envisioned, the American judicial system was to become a beacon to the world and guarantor of civil liberties to all its citizens, or anyone within its jurisdiction.  Therefore, just like the American dollar, if the American people expect its currency to have the full faith and credit of their government, at home or internationally, in-like circumstances, such premise must also apply to its judicial system. 

However, the question must be asked, why did the United States of America decided to house presumed culprits of 9-11 outside its borders and to this day, has kept them imprisoned at a concentration detention camp at Guantanamo Bay Naval Base – in Cuba?

 After 9-11, the national discussion turned - not on self-reflection, why it happened or what we as a nation did to deserve it?  Instead, President Bush, standing on the rubble of the twin towers, took to the bullhorn and promised - not that the perpetrators would be brought to justice, but that justice would come to them.  Semantics aside, it is clear that the Bush Administration desired affect was to punish the presumed perpetrators, but not render justice under a US court of law.

 In fact, at the height of the aftermath of 9-11, the collective anger focused on profiling the would-be culprits, namely Muslims – from anywhere. This is because US intelligence did not have a clue as to which group or country was the source of the malevolent act against the US.  Thus, it is noteworthy to remind ourselves that we “shocked and awed” the world on March 19, 2003 when the US attacked Iraq, a nation that had no connection in the 9-11 attack. And yet, the mastermind of 9-11, Osama Bin Laden, finally took credit for the attack in 2004.  But, never mind the small details; the US Government under the Bush Administration dredged the Middle East with a wide net and captured hundreds of suspected terrorists.  And just as the facts for justifying a war against Iraq were sketchy, so was the basis on which the US Government rounded off suspected terrorists.   In most cases, suspects were turned in by anonymous individuals who were paid a handsome dollar amount for deliverance of would-be terrorist.  In more regrettable cases, names of presumed terrorist were expunged from captured individuals, while under the extreme duress of torture. No need to mention rendition…!

The rule of law notwithstanding, the Bush Administration based its approach to the 9-11 pay-back by establishing The War on Terror: wanted, capture them and hang them. Never mind the legal system or international norms, when the country was in a hanging mood and was even receptive to eroding Constitutional protections for its own citizens.   Accordingly, the Bush administration came up with extra-judicial measures to simply avoid the reach of US law. Thus, in order to circumvent jurisdiction of US courts, the Bush Administration framed the argument that captured terrorists did not deserve due process under US law as that should only apply to US citizens. 

 Originally, captured 9-11 suspects were housed at various countries (CIA black sites) for reasons of enhanced interrogations – until, there was international condemnation which questioned the legality of such detention methods. In response the Bush Administration opened a detention camp at Guantanamo Bay Naval Base (GITMO) in Cuba, to house the 9-11 presumed guilty. Why Guantanamo? Simply, because the Bush Administration and the conservative wing of the country clamored that US law was meant for American citizens only.  However, they assumed right, that if detainees were to be brought to the mainland, US courts’ jurisdiction would unquestionably apply. There was also the fear that if tried under the full protection of the law, perhaps, the evidence for detention would be so sketchy – that they would be set free.

 Further framing the argument that 9-11 detainees were not privileged to be tried under US courts, the Bush Administration held that these individuals were simply not covered under the Geneva Convention rules of war because they were terrorists and not soldiers of any recognized country or government.  The Bush Administration thus labeled the detainees, “enemy combatants” in reference to being considered unlawful combatants.

At first, detainees at GITMO were imprisoned incommunicado, held without charge, tried or convicted.  That’s because the Bush Administration was not interested in providing due process.  Instead, the neo-con cadre at the White House asserted that the courts did not have jurisdiction over the detainees.  Moreover, the country was in no mood to recite Miranda Rights in a time of war.  Soon however, few brave progressives began to stick out their necks to defend human rights and the rule of law.  It was obvious to many liberals, that civil liberties were taking a hit under the Patriot Act, conveniently veiled as part of national security.  But, as court challenges reached the Supreme Court, in Rasul v. Bush, the U.S. Supreme Court held that indeed, US courts did have jurisdiction over 9-11 detainees.  Still, the Bush Administration agreed to provide a semblance of judicial process; however, it would not be under a civilian court of law or have the legal mechanisms necessary to successfully challenge their detention.  This gave way for the creation of “Combatant Status Review Tribunals, a sort of administrative hearings conducted under the Pentagon’s military judicial umbrella.  However, the “hubris” after 9-11 was so extreme, that Congress conceded to every assertion from the Bush Administration, so in 2005, legislation, the Detainee Treatment Act (DTA) was passed and it stripped US courts from any statutory jurisdiction over detainee legal challenges.  Further, it limited the appeals process, and allowed for the formation of a quasi-legal system under military commissions.  In essence, this allowed the Bush Administration to deny Guantanamo detainees the full protection of US law.

In 2006, when the US Supreme Court in Hamdan v. Rumsfeld attempted to re-impose jurisdiction over habeas corpus petitions, Congress once again put in place further restrictions for detainees by enacting the Military Commissions Act of 2006, thus amending its previous Detainee Act and giving the Bush Administration further latitude in the formation of military commissions.  The new legislation also limited detainees from having access to federal courts. In sum, the Bush Administration succeeded in minimizing the value or jurisdiction of American jurisprudence over anyone suspected being a terrorist, but more specifically, for those already under detention at GITMO.

It is noteworthy to mention that in 2008, the Supreme Court finally held in Boumedene v. Bush, that “alien enemy combatants” and Guantanamo detainees did have a constitutional right to a habeas petition from a federal court.  And yet, very few detainees at Guantanamo have been tried to this day – for fear that whether under a military commission or under the scrutiny of a civilian court, few would be found guilty.

As the American public became war-weary and hostile against government privacy intrusion, coupled with international skepticism of US moral direction, it was clear the nation needed change.  Consequently, Sen. Barack Obama became president in January 20, 2009 as he promised to restore the moral compass of the country, reset foreign policy, end the Iraq war, and close Guantanamo Bay detention camp, inter alia. 

Today, detainees are no longer mentioned by the label, “enemy combatant” and torture is not the official modus operandi.  However, the Guantanamo Bay detention camp remains open and continues to house yet-to-be-tried alleged terrorist.  In fact, much of the Bush Administration’s War on Terror infrastructure remains in place.  Some methodology or labeling may have changed but in reality, any meaningful change is de minimis.  Regrettably, the standards of minimizing due process for detainees are status quo ante (same as before).

Therefore, denying due process under US law for anyone simply because the person is a suspected terrorist, not a US citizen or is held in detention offshore – is simply irrational, but may also discredit our judicial system and profoundly devalue what makes the US the great democracy it purports to be.  And just like we guarantee the value of the US dollar, with the full faith and credit of the nation, so too, must we guarantee justice for all who may be under US jurisdiction, in the same breath and essence under the rule of law.

In closing, I submit to you that regardless if the Republican held House is perceived as obstructing the closing of GITMO, or blocking detainee trials in US courts, President Barack Obama can no longer defend the indefensible; he is the Commander-in-Chief and he can and must do the right thing; by closing the Guantanamo Bay detention camp and allow those held in the American gulag to be tried in a court of law.  We must not forget that injustice to one is injustice for all.  So Mr. President, your word is the value of your legacy, and how we judge others, is the value of the country.  

Last thing, the premise of my argument in no way supports what 9-11 culprits did, but instead, I want to highlight the concerns of many, that if we allow our Constitutional protections to be devalued – we may loose the unalienable rights which were constituted in the Declaration of Independence which underscores that all men are created equal.

March, 8, 2013
PS:  I originally published this article with the Daily Kos on March 1,2013. Previously however, I had contacted the White House to get information as to when President Obama was to close the detention camp at Guantanamo Bay - but my inquiry was dismissed.

When I posted this article with the Daily Kos and on twitter, the article was  sent to the White House.
This week, the nation became aware of Bin Laden's son-in-law being under US custody  and not placed at Guantanamo but brought to the US mainland to be tried in a US court of law.  This is CHANGE and justifiable.