"An Administrative Review Board has reviewed the information about you that was talked about at the meeting on 02 December 2005 and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan. Your departure will occur as soon as possible."
That’s it, the one and only record on paper of protracted U.S. incarceration: three sentences for four years of a young Afghan’s life, written in language Orwell would have recognize.
The document was given to a young Afghan upon his release from Guantanamo, four years after he was taken there. He was never formally convicted of anything. As Roger Cohen writes in his New York Times op ed, A Command of the Law,
This is the lexicon of totalitarianism. It is acutely embarrassing to the United States.
Perhaps you would prefer Cohen's positive start, one with which I am sure most here would agree:
It’s Thanksgiving. I’m thankful for many things right now, despite the stock market, and first among them is the fact that the next U.S. commander in chief is a constitutional law expert and former law professor.
Cohen compliments him on the forthcoming appointment of Clinton and the keeping of Gates because of their competence, contrasting that with the primary criteria used by Bush, which was of loyalty to him. That meant no one would challenge his stupidity - yes, in terms of the choices for which Bush opted in his policy, Cohen uses that blunt word. He commends Obama's willingness to have his own thinking challenged, noting
The God-gut decision-making of The Decider got us in this mess. Getting out of it will require an Oval Office where smart dissent is prized.
.
Cohen revisits the manipulation of language by people like Yoo and Gonzales and others, Cheney's "dark side," the "new paradigm," the idea that Geneva was "quaint." He then cautions us that
When governments veer onto the dark side, language always goes murky. Direct speech makes dirty deeds too clear. A new paradigm sounds bland enough. What it meant was trashing habeas corpus.
Cohen reminds us that the first detainees came to Gitmo January 11, 2002. The hearings this month were the first on whether there was justification to hold them. The first, and the US Government lost. Perhaps that is why this administration fought so hard to avoid having to apply habeas, because at least some were perceptive enough to realize they lacked sufficient cause beyond the fact that the powers that be wanted to. And that, "my friends," is a clear indication of tyranny.
Yes, my two-word quotation is a direct reference to our recently defeated Republican nominee. A man who himself had experienced seemingly unlimited detention, albeit in his case on the clear grounds of being someone captured by a nation he was attacking, surely he could have spoken out against this violation of basic international and American legal principles, could he not? But then, after insisting on anti-torture language in a bill the President had to have, he did not blink when Bush waived that language in a signing statement. He did not put himself on the line for a principle he had argued was important, even critical.
Perhaps that is why I am somewhat cautious in agreeing with this fine column by Roger Cohen. For too long I have been hearing, first from Cass Sunstein, then from unnamed others through the press, that the incoming administration might not pursue the wrongdoers who are responsible for Gitmo, for Abu Ghraib, for the "black sites" nd the "extraordinary renditions," for waterboarding and sensory deprivation, for actions that were clearly grossly cruel and many that crossed into torture. Now we hear there might only be a commission, not the investigations that Obama previously told us he would direct his Attorney General to undertake.
Perhaps the financial crises - there are several, overlapping, interconnected - will devour what political capital Obama has. And clearly this is the greatest immediate priority, lest the nation slip into depression and pull down the rest of the world with us. Even if only a recession lasting a year or so, the disruption to people's lives and the destruction of their hopes and dreams can potentially be devastating. Obama must address this first.
But if we are going to restore accountability, does not the new administration have to pursue and expose wrongdoing? Should not that apply to the financial shenanigans that helped create the current crisis? And if we are to avoid future depredation of the rights we presume, however faultily, that we as Americans have and which our Constitution in its plain language does not restrict to citizens (after all, in the 5th and 14th amendments, no person is to be deprived of life, liberty or property without due process of law), that those who overstepped the Constitutional bounds on government actions, even if under the color of supposed law or administrative decree, be held to account?
I listened to John Dean on "Countdown" last night. And in his exchange with Keith Olbermann, I heard the words that maybe Nixon was right, that if the President does it, then it's not illegal. Even the thought of such an attitude is a total denial of the Constitutional principle of limited government.
I hope and pray for a clear statement by President Obama that he presumes no such right. And I also hope, at some point, for as complete a disclosure as possible. Frank Church and Otis Pike did this nation great service when they disclosed the abuses being done by parts of this government ostensibly on our behalf. For a long time, that experience served as a deterrent on the most extreme and egregious abuses of others. Clearly, as that has receded into the past, some have felt as if they had no risk, as if executive orders, opinions by John Yoo, and the rationales of Cheney and Addington protected them from any retribution. If so, has not this nation already irrevocably lost part of its soul?
Perhaps, as we learned on Countdown last night, people are not prosecutable under US law. But that does not exempt them from prosecution in The Hague, even if not in the International Criminal Court. There is no statute of limitations nor ability to pardon Crimes Against Humanity. These charges should be applied at the highest level. Because if American leaders are allowed to get away with it, then everyone else will be able to point to us as justification for their own action.
Cohen argues for an independent investigating commission to uncover what has happened, saying that only after we know, and can identify "deciding officials" will we have people who can be judged. I disagree. We know that the president has claimed for himself the title of "Decider." And we know that we executed Japanese general Tomoyuki Yamashita for the atrocities his troops committed, even though he had not ordered the atrocities - it is the doctrine of command responsibility. And we insisted at Nuremberg and elsewhere that following orders was not a defense. Hell, in 1965 that was part of our Marine Corps indoctrination, that we were NOT to follow an illegal order.
And we have already a documented record that at least implies abuse. Think of Guantanamo, and these are figures Cohen repeats:
770 taken and flown to Guantanamo
23 - only 23 - ever charged with a crime
over 500 released so far, and NONE has received either apology or compensation for being wrongfully detained and abused.
Yes, abused. Denial of rights without proper cause is abuse. Even the worst of those convicted under our laws still do not lose all their rights. On what basis do we accept such denial of basic rights, of basic humanity, for those who have not even been formally charged?
Cohen closes with two short but powerful sentences:
Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.
The idea of the shining city on the hill has been part of America's image about itself since John Winthrop wrote those words in 1630, more than 150 years before our Constitution was drafted. If we are to claim them as our heritage, if there is to be any basis for the idea of any kind of American exceptionalism, then we must fully live up to the idea of the rule of law, with no exceptions. When we step down away from that absolute, the slope is so slippery that the dark side will be upon us almost immediately.
There is a vindictive streak in most of us. We want vengeance, we believe in lashing out. The very idea of a social contract takes from us that right and empowers the government to act on our behalf lest we descend into disorder and turmoil, and then no one is safe. Much of what the world has sought over the past two centuries, is to put similar limitations upon state actors. That effort has never been completely successful, but it has ameliorated some level of suffering in conflict, even despite the increased force that can be applied through modern weapons and technology.
Hobbes warned about the state of nature, with no government, which meant no industry, no agriculture, no leisure - it would be a war of every man against every other man. No one's own power and strength would be sufficient, for others might act in concert against him, thus threatening his very existence. And the line he uses to summarize this remains burned in my mind since I first encountered it half a century past: And the life of man; solitary, poor, nasty, brutish, and short.
Might does NOT make right. Merely because we have the power to do something does not legitimize the action. That is what law should be about, and it is clearly the intent of having a constitutional system, and internationally having limits on the actions of governments and their minions.
There must be limits. And those limits are meaningless if people who violate them can remain hidden in the darkness, their actions forever cloaked on grounds of national security.
Quis custodiet ipsos custodes? Who watches the watchers? We are a democratic republic, which derives its authority from "We, the people of the United States." Ultimately we are responsible for watching the watchers. We must insist of our representatives and our newly elected administration that we be informed. There must be exposure of the wrong-doing, lest yet again the failure to impose penalties leads to future and even more egregious wrongful actions.
If we can agree on this, then perhaps we can agree with Cohen's final short paragraph, with which I will end. If not, then we may too soon have nothing for which to be thankful.
Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.
May you have much this day for which you can be thankful.
Peace.