The Art of Trying Terrorist Suspects (without really trying)
UPDATE: I stand corrected. When I wrote the post, below, I predicted that the plans to try terrorist suspects in federal courts would be aborted once the left and right had finished their political theater (one side pretending to aspire to justice, while the other lobs their usual “soft-on-terror” accusations plus a heapin’ helping of fearful predictions of danger should the trials be allowed to take place), the end result being that — to the blame of no one — justice could continue to be deferred. I now see that, in one fell swoop, the debate over the trials — as well as the debate over the closing of Guantanamo — has instead been neatly suffocated by the recent underpants fire on Northwest Airlines Flight 253.
Until the following questions have been openly asked and comprehensively answered (sans any bogus excuses about state secrets and/or blame games and attacks against those who would deign ask such questions) concerning the incidents surrounding this purported terrorist plot, it would be difficult to conclude this to be anything but a different brand of political theater, designed to do exactly what it will — derail plans to close Guantanamo and put an end to this nonsense about due process of law:
- Who was the well-dressed Indian man described in this CNN interview, who allegedly assisted Umar Farouk Abdul Mutallab in boarding the plane without a passport?
- What was the identity and purpose of the man aboard Flight 253 (described in the same interview, above) who oddly, to the notice of at least one passenger, began videotaping the flight hours before the underpants incident and, during the fire, was the only one standing up, as he intently filmed the incident?
- On whose say-so was Umar Farouk Abdul Mutallab working for al Qaeda?
- On whose say-so did al Qaeda claim responsibility for this plot?
Because, if the only authorities for answering questions #3 and #4 are either IntelCenter or SITE (the official Bush-Cheney Ministries of Propaganda, aka “terrorist monitoring firms,” run by the supreme Reichsministers of Propaganda, Rita Katz and Ben N. Venzke, who have been responsible for most, if not all of the ludicrously fraudulent al Qaeda and bin Laden tapes released since 9-11), then that’s evidence enough that — 2008 election results notwithstanding — that wascally wat Cheney is still at the helm.
Flying to the Sabbath on a Broomstick
From the vantage point of our comfy armchairs, it’s difficult to imagine what crimes any one of us might confess under the duress of “enhanced interrogation.” To what would you confess if someone stormed into your living room and shoved a loaded gun into your mouth? Or, more true to life, if you were stripped naked and hung by your wrists from the ceiling until you fell unconscious from the pain? Or had an electric prod shoved up your rectum?
What if someone threatened to do these things to your child? To what would you confess? Malfeasance? Petty larceny? Murder? Flying to the Sabbath on a broomstick? Plots to blow up bridges?
We are all witches as soon as we are tortured. — Jesuit priest Von Spee, denouncing confessions by torture, from his 1627 book, “Cautio Criminalis,”
As could be predicted, the announcement of the Khalid Sheikh Mohammed tral instantaneously split America down the middle. On the right are the godly, law-abiding, pro-Americans. On the left are the godless, terrorist-appeasing anti-Americans. Before we get too far into this argument, let’s get one thing straight: The reason the folk on the right object to Khalid Sheikh Mohammed’s trial is because they don’t trust the American judicial system.
The folk on the right don’t trust our constitution, and they don’t want to hear a bunch of liberal, tree-hugging crap about habeas corpus, due process and international treaties. (God help the folk on the right, should they ever find themselves on the wrong side of the legal system to which they aspire). What they want is 100% assurance that the accused will be convicted. Period. The finer points of law — such as evidence of guilt — have become moot. After all, there are some crimes so horrible, that the mere accusation is enough to taint a person with guilt. Coddling such people with attorneys and due process of law is an affront to real justice.
To these folk, real justice is what you do with the raw anger in your gut — not this fancy-pants, Harvard Law school mumbo jumbo designed to mollycoddle evil. Real justice is Biblical: an eye for an eye, a tooth for a tooth, a hand for a hand, and so on. This is why the folk on the right are still on board with the same administration that, for 8 years, blatantly spat on the U.S. Constitution, the Bill of Rights and the Geneva Conventions and, instead, resorted to torturing people to exact punishment and extract evidence — even as we’ve known for centuries that people will say anything to make the torture stop:
Such confessions do not arise out of the clear blue. Here’s how it works:
The interrogators accuse the detainee of a crime, supplying him/her with the details of the alleged crime (e.g. kissing the anus of a demon or plotting to blow something up). The detainee is then — over a period of minutes, hours, days, weeks, months and/or years — beaten, cut, sliced, subjected to electric shock, freezing cold, left naked and forced to stay awake for days on end, hung from the ceiling by his wrists, starved, suffocated, water-tortured, and/or threatened with rape or death to himself, his wife or his children (who may, indeed, be heard screaming in an adjoining room) and otherwise tortured, threatened, humiliated and terrorized until he confesses to the crime(s). Next, the interrogators demand the names of his co-conspirators — supplying the detainee with the names and specifics of their alleged crimes (e.g. supplying broomsticks or bombs to other witches). He is then tortured until he tells the interrogators what they want to hear. New arrests follow. The accused co-conspirators are likewise tortured into confessing crimes and fingering still more co-conspirators. New arrests follow….
Our country has spent a lot of air time over the past several years, deliberating from comfy armchairs (What is torture?), debating from media roundtables (Did we torture?), engaging in parlor games (Is torture wrong?), and daintily sipping sophisms from silver spoons (When is torture justifiable?).
Aside from being immoral, inhumane, a violation of the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution (notwithstanding the legal and semantic sleights-of-hand concocted through the Bybee and Bradbury torture memos), a violation of the terms of the Third and Fourth Geneva Conventions, a violation of the the U.N. Convention Against Torture, and in defiance of the Universal Declaration of Human Rights (in short, a violation of all international law) — torture is not only wrong and unjustifiable in all circumstances, but it goes against natural law.
Natural law? Say what?
The Martens Clause
Introduced in a preamble to the 1899 Hague Convention, the Martens Clause was intended to bridge the gap between the basic principles of humanity and the existing international treaties on armed conflict — treaties which can never be said to be complete, as they constantly evolve according to the new inventions of war. The Martens Clause provides that, just because something is not explicitly prohibited by a treaty doesn’t mean it is legal:
“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” — the Martens Clause, July 29, 1899 ¹
In other words — should the law fail to spell this out — we human beings are expected, during wartime, to observe the basic laws of humanity and should refrain from doing those things that are innately, universally understood to be unconscionable.
Not exactly a law, but a guiding principle or aspiration, the Martens Clause has long been the topic of debate, interpretation, re-interpretation and, at times, dismissed as irrelevent. The International Law Commission interprets the Martens Clause as such: “[it] provides that even in cases not covered by specific international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” ¹
One notable example of the importance of the Martens Clause was the Nuremberg trials, conducted at a time when international laws and treaties had yet to catch up with the inventions of that particular war. According to Rupert Ticehurst, Lecturer in Law at King’s College School of Law, London:
…. the judgment of the Nuremberg Tribunal, which to a great extent relied on natural law to determine the culpability of the Nazi high command, confirmed the continuing validity of natural law as a basis for international law in the twentieth century.
“In contrast to positive law,” writes Ticehurst, “natural law is universal, binding all people and all States. It is therefore a non-consensual law based upon the notion of the prevalence of right and justice.¹
Whether or not this should apply to the current war — fka “the war on terror” — doesn’t appear to be a topic of debate. But it should be. We should be asking ourselves:
Are all prisoners entitled to the principles of humanity and the dictates of the public conscience? Or just certain ones? And if we classify our prisoners as “enemy combatants” and “detainees” can we ignore all the laws governing prisoners of war and, instead, indefinitely imprison them — never charging them with a crime, yet barring all avenues for release; forever denying them access to an attorney, formal charges, the right to testify and present evidence?
Equally important: Is a man still considered innocent until proven guilty? And do confessions extracted under torture and/or the threat of harm to one’s family constitute evidence?
Or have we human being finally discovered that one special exception that nullifies all known laws and codes of human conduct? Have we finally discovered that there is, indeed, a class of human beings who — regardless of their innocence or guilt — are exempt from equal protection under the law? Have we become so divine in our wisdom, that we can now dispense with such quaint notions as the law of the land and, instead, allow our most primal responses to fear to serve as the foundation for justice in America?
Enter King George
The reasons why the Bush-Cheney Administration chose to crush both the spirit and letter of both international treaties and U.S. constitutional law — and, with them, the most basic principles of humanity — are still up for debate. But the end result was this: they polluted the entire judicial process.
Having broken all known laws regarding the treatment of prisoners of war and criminal suspects, it then became necessary for the Bush Administration to rewrite, reinterpret and, alternately, nullify our 225-year old Constitution and Bill of Rights, so as to legalize torture and crimes against humanity. And to ensure that no one tried to stop them, they waged a campaign of fear, bolstered by the timely releases of scary, albeit fraudulent, audios and videos disseminated by their paid propaganda hacks at SITE and IntelCenter. And to discredit constitutionally-minded lawmakers and scholars, they accused them of being elitist and “soft on terror.” And to discredit a skeptical public, they branded anyone who disagreed with their agenda as either a terrorist appeaser or a conspiracy theorist. And to ensure that the eyes of the world would never know the details of their crimes, they slapped labels such as “state secrets” and “national security” onto the sloppy paper trail left in their wake.
And, to be sure that the voices of these prisoners would never heard — that their testimony and the lack of evidence against them would never be known — the Bush Administration concocted a brand new judicial systems for trying their torture victims.
Hence, the President’s Military Order of November 13, 2001, one of the first great assaults on democracy and the U.S. Constitution, which empowered the Department of Defense with the sole authority to try these prisoners, unencumbered by the scrutiny of the judicial branch of our government. Hence, the later Military Commissions Act of 2006 — crafted by a Republican Congress to thwart an earlier 2004 Supreme Court decision that granted habeas corpus to these detainees. Hence the Combatant Status Review Tribunals, which the Supreme Court ultimately decided in their 2008 ruling were inadequate to meet the terms of habeas corpus, since they did not allow the detainees to be represented by lawyers, gave them limited ability to present evidence on their behalf, and left no mechanism for their release, should a federal court find inadequate reason to hold them. Hence an 8 year assault on the U.S. Constitution through a series of new-fangled systems of justice designed to forbid the accused from presenting evidence or plead a defense, with access to attorneys — if allowed at all — so limited, abridged and censored as to be little more than a token nod to procedure within a sham system of justice.
In short, these prisoners have been brought to trial before the Military Tribunals for no other reason than to be pronounced guilty. Or, as has more often been the case, to be pronounced as being inherently dangerous, sans any evidence — beyond that extracted under torture — to support this claim. In the latter scenario, these prisoners are left suspended in indefinite limbo, mired in procedural mumbo jumbo under the guise of state secrets, as part of the systemic effort to make sure that the truth about these prisoners is never heard outside the prison walls.
The beauty of these new American systems of justice is that, by invoking the “state secrets” privilege, King George and his presidential progeny have, thus far, been able to evade — in the interest of national security — judicial scrutiny and at least some of the international condemnation over our illegal detentions, extraordinary renditions and “disappearances,” prisoner abuses, torture and other war crimes.
Our Dirty Little Secret
The fact is this: Untold numbers of prisoners in Guantanamo are not being held because of they’ve committed any crime, but because of the crimes committed against them. The only way to covering up these crimes is through “indefinite detention” — by keeping these prisoners forever locked away — barring them from all legal or judicial recourse, barring the outside world from ever hearing of the torture and extraordinary rendition to which they’ve been subjected.
We in America are told that these prisoners are dangerous. And we’re told that the evidence of their dangerousness must be kept secret, else it would threaten our national security. What we haven’t been told — and what the prisoners, themelves, have yet to be told — are their charges: With what crimes exactly, are these men being charged? What are they guilty of?
The answer for many of the prisoners is this: nothing. They have not been charged with one single crime — and they never will be — because the only evidence against them is that which has been coerced through torture. And, despite years of effort and armies of investigators, King George was never able to find any evidence to substantiate the crimes to which these tortured prisoners confessed.
Many Americans, reacting to the gut horror of the September 11th, have become hardened to the tenets of justice. To them, the term, “due process of law,” is a dirty phrase. To them, it is still not well enough that our country has already extracted more than 100 million of pounds of flesh — collateral damage, it’s called — from the innocent Iraqi and Afghani mothers, fathers and children who have been blown to pieces by our bombs and our guns.
To them, the deaths of these innocents is a small price to pay for….. For what? What exactly do we hope to accomplish at this point, beyond saving face in Afghanistan and raising the stock market value of the defense contractors? What, exactly, do we hope to buy with the million-dollar-per-soldier bandages we are slapping on our gaping hypocrisy of a war in Afghanistan? Our real war, now, is in Pakistan — a war we carelessly blundered into existence and, in the process, created a real potential for nuclear armegeddon.
God forbid that any in this country would commit treason by asking the real question we need to be asking: What are the seeds to this whole war? Because the seeds were planted long before September 11th. At the risk of over-simplifying the issue, I would propose that, were the United States to (1) lessen its dependency on fossil fuels, and (2) discontinue its blind support, funding and arming of Israel’s campaigns of aggression and violence, and (3) stop torturing and illegally detaining people, (4) stop funding covert wars and arming proxy militias, and (5) begin honoring international treaties, that the complexion of world politics would be fundamentally changed for the better.
God forbid that anyone but a conspiracy theorist would point out that all of our wars — overt, covert and by-proxy — are in the most mineral and oil-strategic spots on the globe; or would draw a relationship between America’s sanction of Israel’s terrorism and al Qaeda terrorism; or would point out that our torture and illegal detention programs have only recruited retaliation. God forbid that any in this country would ask:
What’s the net difference between al Qaeda retaliating for their grievances against America by plowing planes into buildings and killing nearly 3,000 innocents, and America’s retaliating for grievances against al Qaeda by plowing bombs into villages for 8 years straight — killing, perhaps, more than a million innocents?
How many pounds of flesh is enough?
King George and Lord Cheney have told us — and Obama concurs — that terrorists kill and torture because they are innately evil, while America kills and tortures to spread spread freedom and democracy. Yet, it was democracy and freedom that also died on September 11th — a crime for which Osama bin Laden never claimed credit, outside of the controversially-sourced December 13, 2001 video (and subsequent others, equally controversial); a crime that compelled America’s war on terror, whose by-product has been unprecedented levels of wealth and power for those political and corporate profiteers (from Dick Cheney, Donald Rumsfeld and Alberto Gonzales, to Cofer Black and Erik Prince ), whose pockets have been filled from the blood of our wars.
The Trial of Khalid Sheikh Mohammed
Against this backdrop, it’s no wonder that the prevailing right and the sycophant left in America are up in arms over the prospect of Khalid Sheikh Mohammed being tried in federal court. Aside from the fears over what might be revealed, in the way of facts, such trials do not come with a 100% guarantee that the accused will be convicted.
Having said this — and knowing what I know of our country’s history over the past 8 years — I have to wonder: Why Khalid Sheikh Mohammed?
Why did the DOJ and the Obama Administration choose this particular prisoner — the most hated, despised man on the planet, aside from Osama bin Laden — to use as the test case in America’s return to the standards of justice?
Could it be that the Obama Administration really doesn’t want this trial to take place? Could it be that they, like the Bush Administraion before them, they would like to just sweep the whole matter under the rug and keep forever hidden from scrutiny the crimes committed by our government?
I think so.
Otherwise, the first case on the docket would have been a prisoner such as Guantanamo detainee, Majid Khan — in all likelihood an innocent man — who was tortured into making confessions in 2003, yet has never been legally, officially, formally or otherwise charged with a crime. A man who has been rotting in secret prisons, then in Guantanamo, for the past 6-1/2 years. A man for whom — few who know the facts of his case could argue — justice has been grossly perverted and denied.
Call me jaded, but I see red flags in the DOJ/Obama Administration announcement of the intention to try Khalid Sheikh Mohammed in federal court, rather than putting the full weight of our judicial system behind Majid Khan and the hundreds of others like him, whose fates have already been ruled on by the Supreme Court.
In a nutshell, the Supreme Court ruled this in 2008: Either charge these prisoners with a crime, or set them free.
So why has the Obama Adminstration, just like the Bush Administration, choosen to ignore this directive? It would appear that neither administration wants to openly acknowledge, before the entire free world, that our war on terror is not only immoral and illegal, but is being orchestrated by same ilk of men who would — upon coercing a man to confess flying to the Sabbath on a broomstick — sincerely believe that the end justifies the means.
To what crimes would you confess if someone stormed into your living room and kidnapped your infant niece? Or if you were suffocated with water? Or stripped naked and hung by your wrists from the ceiling until fell unconscious from the pain? Or had an electric prod shoved up your rectum?
What if someone threatened to do these things to your child? To what would you confess? Malfeasance? Petty larceny? Murder? Flying to church on a broomstick? Plots to blow up bridges?
And would you accuse others, as well?
Majid Khan is but one of many “co-conspirators” whose name happened to come up during one of Khalid Sheikh Mohammed’s 183 waterboarding sessions during March 2003 — back when the Bush-Cheney Administration was desperate to find any intelligence, even cooked intelligence, to justify going to war in Iraq.
Beyond the confessions extracted through the torture of Khalid Sheikh Mohammed — and, later, the torture of Majid Khan — that there is not one scintilla of evidence that Majid Khan is guilty of any crime, terrorist or otherwise. In fact, Khalid Sheikh Mohammed himself has several times acknowledged that he sometimes told the interrogators exactly what they wanted to hear, just to make the torture stop.
Yet, the questions still drift from our comfy armchairs: When is torture justifiable?
The answer is this: Never. Beyond the fact that is is immoral, inhumane and illegal, it has also made it impossible to try these detainees in a just court of law. There is no justice system on this planet, unless in kangaroo courts in the most oppressive, dictatorial regimes — courts much like our own Military Tribunals — that could do anything but throw out the charges against Khalid Sheikh Mohammed. While — from what we’ve been told — there exists actual evidence of his guilt, the pool of justice has been so thoroughly polluted that it is all but impossible to ascertain his guilt or innocence through legal channels. The best that can be hoped is to stage a show trial, so that he may formally be pronounced guilty.
Time will tell, but I predict that the trial of Khalid Sheikh Mohammed will never take place in federal court. I predict that, instead, Americans on the left and the right will continue to step-up the rhetoric. Words will be twisted behind people’s backs until, finally, someone in the Obama Administration or the Department of Justice cries, “Uncle!”
We’ll know the battle’s over by the silence left in its wake. It’s the same silence that was heard from the witches left dangling from the gallows; it’s the silence left by the burning bodies hanging from the lynching trees; it’s the sound made by a thousand tortured souls echoing from our illegal prisons. It’s the sound that justice makes, after being dragged kicking and screaming to the grave.
by Mantis Katz for the canarypapers
1. The Martens Clause and Armed Conflict by Rupert Ticehurst BA LLM, Lecturer in Law, King’s College School of Law, London (article from the International Committee of the Red Cross website).
FOR MORE READING:
Guantanamo Voices: Guantanamo Basics: Answers questions on the prisoners at Guantanamo related to their detention, crimes and the judicial process