The New American Justice

Written: 04/26/2003
Published in The People’s Civic Record, a monthly, Wilmington, NC based progressive magazine.


“Implicit in the term `national defense’ is the notion of defending those values and ideals which set this nation apart.”

– Justice Potter Stewart

In Bagram air base, north of the Afghan capital Kabul, U.S. military police run a detention facility. In December 2002, two detainees died while in U.S. custody shortly after their arrival there. Military coroners have determined that one man died on December 3rd of a pulmonary embolism and the second man died on December 10th of a heart attack. Autopsies found that a contributing factor in both cases was “blunt force trauma.” Both death certificates had “homicide” checked as the cause of death.

In an article on conditions of the detainees at the Bagram detention facility, the Washington Post reported that:

“According to Americans with direct knowledge and others who have witnessed the treatment, captives are often ‘softened up’ by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms.”

Other conditions employed include: blindfolding and hooding, binding in painful positions, denial of medication to alleviate pain, sleep deprivation, and various other “stress and duress” techniques.

Several weeks ago, two prisoners judged innocent were released. Both told of being doused with water while confined naked in cells so cold there was ice on the floor.

One official, supervising the capture and transfer of accused terrorists, said, “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.”

Sometimes, particularly uncooperative detainees are transferred to foreign intelligence services in Egypt, Jordan, Morocco, Pakistan, and Syria, who conduct “conventional” methods of torture – including beatings and electric shocks. These transfers require no legal process and are known as “extraordinary renditions.”

The March 2002, Washington Post told of a covert campaign by the U.S. to abduct terror “suspects” from “Indonesia, Pakistan, Yugoslavia, and other countries” and transfer them, without extradition procedures, to where they are imprisoned, tortured, and, in some instances, put to death.

Meantime, over 660 prisoners, from over 40 countries, are being held indefinitely at the U.S. naval facility at Guantánamo Bay, Cuba, in a kind of legal limbo. Most of the detainees were captured during the fighting in Afghanistan, but the U.S. refuses to grant them prisoner-of-war status. The numbers include at least four, who are children, aged between 13 and 15.

These actions violate both the Geneva Conventions and international law.

A deputy commander at the base has been quoted as saying that some of the detainees appeared to be “victims of circumstance.”

According to Amnesty International, “Among the early transferees were six Algerian nationals seized by US officials in Bosnia-Herzegovina. Their case was described by a representative of the United Nations High Commissioner for Human Rights as one of ‘extra judicial removal from sovereign territory.'” And it refers to the holding of children as “wholly repugnant and contrary to basic principles of human rights.”

Civil rights lawyer, Stephen Yagman, who has launched a lawsuit on the prisoners behalf, says treatment at Guantánamo includes “sensory deprivation to induce a feeling of depression so that they become receptive to any human contact.” Former U.S. intelligence officer Wayne Madsen called this “torture lite,” sleep deprivation and prolonged exposure to bright light.

It was reported recently that suicide attempts among the prisoners is on the rise with the total number of attempts now at 25.

Estimates by various human rights organizations are that there are roughly 3,000 people being held by the U.S. military and intelligence agencies – both foreign and domestic – in its “war on terrorism.” They have not been charged, and they have not been connected to the terror attacks of 9-11.

In November 2002, Abu Ali al-Harithi, a suspect in the October 2000 attack on the USS Cole, was spotted driving through the desert in Yemen by a CIA drone. Violating the sovereignty of another country and exacting sloppy justice, the drone launched Hellfire missiles at his vehicle, killing him and five others (whose associations with him were unknown), including a naturalized American citizen, Ahmed Hijazi.

Such brutal and arbitrary treatment of suspects and prisoners offends every notion of fairness and due process. Widely reported in the foreign press, it helps explain why not everyone is thrilled with the notion of America imposing its definition of freedom throughout the world.

Since most of the prisoners, that we have “detained,” are foreigners captured during the months immediately following September 11th, during the fighting in Afghanistan, it is often easy to dismiss the stories of abuses in far off places as part of the necessary response to the horrible events of September 11….

Meanwhile, back in the United States, the Justice Dept. continues rounding up, deporting, and detaining immigrants, while keeping their names, numbers, and cases secret. When legal hearings are held, they are held behind closed doors with the press – sometimes even the lawyers of the detained – barred from the proceedings. Many have been held without any outside contact and some unknown number are being held indefinitely, without being charged, by being designated as “material witnesses.”

Even American citizens are not immune from the new justice, as the cases of Yaser Esam Hamdi, José Padilla, and Maher (Mike) Hawash demonstrate.

Hamdi was arrested overseas. In January, the 4th Circuit Court of Appeals ruled that because he had been arrested overseas in “wartime,” “the judiciary must defer to the military.” The government can now hold him indefinitely without constitutional protections simply by declaring him an “unlawful combatant.”

José, arrested in the U.S., is a native born American citizen, born in Brooklyn. Initially, the government planned to try him in a civilian court. But when it appeared that there might not be enough evidence to convict him, he was also declared an “unlawful combatant” and has been held in secret since June.

U.S. District Judge Michael Mukasey has ruled that Padilla should have the minimum right to consult with lawyers. The Justice Department however, has refused to comply with the order and will continue to appeal.

Hawash, the most recent American to be arrested, is a 38-year-old software designer for the Intel Corporation in Oregon and a graduate of the University of Texas. In mid-March 2003, a dozen armed police raided his home at dawn, terrifying his wife and three children. According to the New York Times, Federal Court search warrants were sealed in the case and the F.B.I. is holding him indefinitely as a “material witness” in an ongoing investigation by the Joint Terrorism Task Force. Friends, family, and supporters say they have no idea why he was arrested without normal legal protection or what the government wants with him.

Steven McGeady, a former Intel executive, has started a legal defense fund for Mr. Hawash. Explained Mr. McGeady, “You hear about this happening in other countries and to immigrants and then to American citizens. And finally, you hear about it happening to someone you know. It’s scary.”

Lucas Guttentag, director of the American Civil Liberties Union’s Immigrant’s Rights Project, agrees, “The government doesn’t have, and should not have, the power to arrest and detain someone without charging them. If this kind of thing is permitted, then any United States citizen can be swept off the street without being charged.”

Secret arrests, indefinite imprisonment, and the apparent elimination of the most basic civil rights of American citizens on Justice Department say-so alone is but the tip of the iceberg of the new American justice. The U.S.A. Patriot Act, hastily passed shortly after 9-11-01, and certain other recent executive orders, allow the government the kind of arbitrary rights we have traditionally associated with totalitarian states. Hard-won privacy rights were undone overnight. The new powers allow the government to monitor religious and political institutions and conversations between attorneys and clients. They allow the government to examine patrons’ library records (including website visits), and to forbid librarians to speak about it. They allow the government to enter your home in your absence and search it, along with your papers and effects, without notifying you and without probable cause. They allow the government to jail you indefinitely without a trial, without right to legal representation, without being charged, or without being able to confront witnesses against you.

Apparently, the Justice Department thought the Patriot Act didn’t go far enough. It is now preparing a “National Security Enhancement Act” – dubbed Patriot Act II. The new proposals are reported to include a provision that the right of U.S. citizenship may be removed, if someone is declared an “unlawful combatant” by the executive branch of government. (Currently, only citizens themselves can renounce their citizenship.)

What has happened to our Bill of Rights?

If the terrorists “hate us for our freedoms,” why are we so eager to give them up to fight them?

As Benjamin Franklin said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

In last year’s State of the Union address, Bush said that “America will lead by defending liberty and justice;” in this year’s State of the Union, Bush said that our enemies will be learning “the meaning of American justice.”

Many Americans are also asking about the “meaning” of the new “American justice.” Two hundred years ago, our ancestors fought a revolution to replace the arbitrary rule of men with the rule of law. Individual rights were best protected, they believed, by due process, not the arbitrary rules of government no matter how well intentioned. In the interim, the American idea of rule of law became a model for patriots throughout the world to fight for in their own countries. Bush says this is a “new” kind of war, with “new” methods to deal with it. Is the successful American experiment at risk? Will the phrase “American system” become an idea to be feared? Are our leaders making up the rules as they go, or are they determined to impose a new kind of justice alien to the American experience?

In the months preceding the war in Iraq, our leaders described it as a war against “evil.” As the military phase of the war in Iraq draws to a close, perhaps we had better remind ourselves of the meaning of the “good” we claim to propagate.

In October 2001, Osama bin Laden said, “I tell you, freedom and human rights in America are doomed.”

Any “new” American justice should reflect our best ideals and greatest values — not those of our worst enemies and darkest nightmares.