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| Reflections on War, Detention and Rights ... ... ... ... |
Erewhon |
07/13/06 |
Reflections on War, Detention and Rights
By ADAM LIPTAK
Published: July 13, 2006
Mamdouh Habib, an Australian who says he was tortured in Egypt before being sent to Guantánamo Bay, Cuba, for intense interrogation and indefinite detention, had reason to be wary when a man claiming to be his lawyer came to see him in the fall of 2004.
The lawyer, Joseph Margulies, had anticipated the reasonable fears of a client who for years had been tricked, disoriented, humiliated and worse. He had a letter of introduction from Mr. Habib’s wife, Maha. But American interrogators had once falsely told Mr. Habib that his wife was dead, and Mr. Margulies feared that his client would think the letter a forgery or the product of coercion.
As backup, Mr. Margulies came armed with a few memories Mrs. Habib had shared with him about her husband: “the location of their first date, the first gift he gave her, and the people who looked after their youngest son when their oldest boy was ill.”
“There is no reason to repeat those private reminiscences here,” Mr. Margulies writes in “Guantánamo and the Abuse of Presidential Power,” “but suffice it to say, they worked. When I shared that information with Mamdouh, he began to cry.”
The detention centre at Guantánamo Bay, created in early 2002 to hold suspected terrorists, is still home to about 450 prisoners. Mr. Margulies filed suit on behalf of four of them, including Mr. Habib, just months after the first Guantánamo camp was built. For the next two years the Bush administration refused to let the four men know about the suit, much less meet with their lawyer.
It was in that case, Rasul v. Bush, that the Supreme Court in June 2004 landed the first body blow to the Bush administration’s assertion that it has the unilateral power to designate people as terrorists and then hold them forever without charges. Mr. Margulies’s meeting with Mr. Habib followed the Rasul decision.
Last month, in a kind of sequel to Rasul, the Supreme Court said the administration’s plans for trying Guantánamo prisoners using secret evidence offended both military justice and international law. The administration and Congress are at work recasting those plans, and the Pentagon announced this week that it will comply with an important provision of the Geneva Conventions, the one prohibiting “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Mr. Habib was lucky in his lawyer, as Mr. Margulies is a resourceful advocate, a serious and sober legal analyst and a fine, sometimes luminous writer. In his new book Mr. Margulies weaves together a history of wartime interrogation, a consideration of the legal standards that apply to it and an assessment of the toll that Guantánamo has taken on the men and boys held there, and on the nation’s reputation and values.
The book’s title, with its dry allusion to the separation of powers, does not do it justice. “Guantánamo and the Abuse of Presidential Power” represents the best account yet of what Mr. Margulies calls “a human rights debacle that will eventually take its place alongside other wartime misadventures, including the internment of Japanese-Americans during World War II, the prosecutions under the Espionage and Sedition Acts during World War I, and the suspension of the writ of habeas corpus during the Civil War.”
The first problem in considering Guantánamo is one of metaphor. It is a prison, certainly, but not one meant to mete out punishment for past crimes. It is a kind of prisoner-of-war camp too, a way to incapacitate supposed combatants for the duration of hostilities so that they cannot return to the field of battle. But here the hostilities — the so-called war on terror — may last forever. And the battlefield is the globe.
Most crucially, Guantánamo is an interrogation chamber. To be effective, administration strategists said, it should operate outside the American legal system, “without the risk,” Mr. Margulies writes, “of interference by courts and counsel into the delicate ‘relationship’ between interrogators and prisoners.” And to be more effective yet, they went on, the prisoners had to be denied the protections of the Geneva Conventions.
Until Guantánamo, the United States had an excellent reputation for the humane treatment of captured combatants. During World War II, for instance, Mr. Margulies writes, when more than 400,000 German, Italian and Japanese prisoners of war were held in the United States, their captors followed the Geneva Conventions “with an almost compulsive regard.” Because the conventions require that prisoners be afforded the same living conditions as their guards, for instance, American camp commanders ordered their own soldiers to sleep in tents until barracks for the prisoners were completed.
The Guantánamo prisoners, by contrast, were made to endure stress positions, extreme temperatures, sleep deprivation, blaring music, strobe lights, religious insults and sexual humiliation. Three prisoners there recently committed suicide.
In “Oath Betrayed” Dr. Steven H. Miles, an expert on medical ethics, collects evidence that “armed forces physicians, nurses and medics had been passive and active partners in the systemic neglect and abuse of prisoners” at Guantánamo, in Iraq and in Afghanistan.
In his short, passionate and disjointed book, made up mostly of information from raw documents, reports and news accounts, Dr. Miles allows outrage to substitute for analysis. Still, he collects countless examples of medical complicity in abuse that is all the more disturbing for the lack of any notable protest. Doctors have, Dr. Miles writes, certified prisoners as healthy enough to withstand harsh treatment, monitored them during interrogations and concealed evidence of their mistreatment.
“Enough practitioners complied when they should have resisted, or kept quiet when they should have spoken out,” Dr. Miles writes, “to allow abusive interrogational practices and a neglectful prison environment to operate largely without medical opposition or disclosure.”
Lawyers were also slow to rise to the challenge of Guantánamo. In the early days the establishment bar and even some of the major civil rights groups held their fire, leaving it to Mr. Margulies and a handful of other lawyers — notably those of the Center for Constitutional Rights in New York, Thomas B. Wilner of Shearman & Sterling in Washington and Clive Stafford Smith in New Orleans — to file the most important American lawsuits since the Sept. 11 attacks. In an aside on page 158 of his book, Mr. Margulies notes that he was not paid for his work on the Rasul case.
Inside the government, though, the situation was more complicated. Lawyers in the military and the State Department fought an honourable if largely losing battle to try to preserve the Geneva Conventions.
In 2002 Defense Secretary Donald H. Rumsfeld described those held at Guantánamo as “among the most dangerous, best trained, vicious killers on the face of the earth.” But a recent study prepared at the Seton Hall University School of Law shows that just 8 percent of the detainees were even said by the government to be Al Qaeda fighters.
More than 300 Guantánamo detainees have been released or transferred, Mr. Habib among them. The United States government never charged him with a crime, and he is back in Australia, a free man.
---
GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER, By Joseph Margulies
322 pages. Simon & Schuster. $25.
OATH BETRAYED - Torture, Medical Complicity, and the War on Terror,
By Steven H. Miles, M.D.
220 pages. Random House. $23.95.
===
Where now?
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Clarification/Follow-up by Erewhon on 07/13/06 6:42 pm:
A serial accuser? Having read the article you very kindly supplied I have to say I am not surprised.
Perhaps in the Australian case he will get his day in court, and then we might be better placed to call him bad names or to apologise to him.
Clarification/Follow-up by Fritzella on 07/14/06 1:10 am:
Ja, I have seen John Dean on a couple of talking head's shows and am interested in reading his new book.
Will check out the price on Amazon.
Fritzie
Clarification/Follow-up by paraclete on 07/14/06 4:54 am:
Ronnie
never let the facts get in the way of a good story
here is a little more about Habib, not entirely innocent even if insufficient evidence would be how I would read it
Brown and other Australian critics seem to think that, by releasing Habib rather than putting him on trial, the US is tacitly acknowledging that it was wrong to have held him for the past three years. Lyn Allison, leader of the Australian Democrats, insisted, for example, that the release of Habib showed he had been held "without evidence" and therefore his "detention for over three years was unwarranted and unnecessary".
The reasoning is particularly strange given the known facts of this case. Habib was taken into custody in 2001, in the context of an actual war. That war, against the terror-sponsoring government in Afghanistan, was authorised by formal resolution of the UN Security Council.
It is the common practice in war to hold captured enemy combatants as prisoners, while the fighting continues. Neither the Taliban leaders nor al-Qaida ever directed their fighters to cease operations in Afghanistan. There is still fighting going on in Afghanistan, or at least terror attacks designed to prevent the new government from consolidating its authority.
Had Habib been captured in the uniform of an organised army, it would have been entirely reasonable to hold him for the past three years. Nobody thought it was wrong to hold German prisoners of war for even longer periods during World War II. Nobody demanded that allied legal teams show "evidence" that each individual German prisoner was still dangerous in, say, 1943 or 1944. But Habib was not captured in the uniform of an organised army.
The enemy in Afghanistan did not fight that way. Terrorist forces tried to blend in with civilians to escape detection and then struck randomly at civilians, as well as at military targets. The terrorists ignored all the most basic laws of war.
It is bizarre to think that, while soldiers obeying these laws could be held as prisoners, those who operate in defiance of these laws could not be held unless convicted on formal charges, proved in a formal procedure.
Some prisoners at Guantanamo are going to be subjected to formal trials. It has taken a long time to determine the proper procedure for such trials and to gather evidence for individual charges. But such delays are hardly remarkable.
At the end of World War II, Australia, along with the US and Britain and other allied nations, mounted trials for Japanese soldiers charged with war crimes against allied prisoners and civilians. For many defendants, these trials did not commence until several years after Japan's surrender - in some cases by as much as six years after the accused were taken into custody.
Of nearly 6,000 Japanese prisoners charged in such trials, more than 1,000 were actually acquitted - by military tribunals not known for exacting standards of evidence. Nobody at the time claimed that it was "injustice" to have prosecuted those who were acquitted. Nor was there much complaint when charges against several hundred Japanese prisoners were ultimately dropped without trials.
Whether prisoners at Guantanamo were "tortured" is a different question. There may have been abuses. Ordinary prisoners have been abused in prisons in the US, because prisons are not always properly run. But stressful interrogation techniques shouldn't be automatically denounced as torture. Having ignored the laws of war, fighters in Afghanistan were not entitled to claim Geneva Convention protections against stressful interrogation.
Habib's wife, remember, acknowledges that he tried to raise funds in Australia for Omar Abdel Rahman, who organised the 1993 bombing of the World Trade Centre.
It's possible that Habib did not participate in terror operations in Afghanistan and his presence there was coincidental. But no one should be indignant that US authorities did not want to give him the benefit of the doubt. In an era when terror attacks can kill thousands in a few hours, it's not unreasonable to give higher priority to protecting potential terror victims - who are certainly innocent - than individuals captured in such suspicious circumstances as Habib.
First published in The Australian on January 13, 2005.
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