Thursday, December 18, 2008

Remember Guantanamo: for Danny Pearl

Five years ago today, I finished working on an essay that I began researching right around Daniel Pearl's birthday on October 10, 2003, and about a year after his murder in Karachi, Pakistan.

Wall Street Journal reporter, and father-to-be, Pearl was savagely killed, as you recall, back in February, 2002. The article attempts to show that instead of working to overcome that kind of brutality, our government tried to figure out ways to simulate, and perfect, it.

My personal journey into uncovering, and exposing, the activities of an administration bent on twisting, bending, and insulting the Constitution, and international law, began on the day Danny Pearl was assassinated, and has yet to stop.

I sent the article, "Remember Guantanamo," to editors of all the major mainstream newspapers, and even magazines like "The Atlantic Monthly." It would have no takers. Newspapers from San Francisco to New York to Washington, D.C. would have no part of what I had to say yet, within months of my writing "Remember Guantanamo," Gitmo, and human rights abuses that took place there, became the subject of many editorials.

During his interview with ABC News earlier this week, Vice President Dick Cheney insisted that the detention center at Guantanamo Bay, Cuba needs to remain open until what he calls "the end of the war on terror." Clearly, the only kind of commerce his administration has been willing to engage in with Cuba is that which brings the greatest profit to the prison-industrial complex in which he has vested interest.

Additionally, during the interview, Mr. Cheney gave a hearty thumbs-up for waterboarding, and other "enhanced alternative interrogation techniques." We thought it might be instructive not just for the vice president, but for anyone else who thinks that redefining the ways in which prisoners of war have been treated for generations, and implementing widescale government surveillance programs would keep us safe to remember not just his final words, but the torture to which an American citizen, and journalist, Daniel Pearl was subjected.

It's been a long five years for all of us.

We're hopeful that both President-elect Obama and newly appointed head of the Senate Intelligence Committee, Senator Dianne Feinstein, will keep their promise to close Gitmo, and take a long hard look at the heinous treatment received at the hands of U.S. troops in Iraq, Afghanistan, and Guantanamo then and now. We suspect this is what Danny Pearl would want.

Remember Guantanamo

for Daniel Pearl

"History is a responsibility Americans would rathernot face." Octavio Paz

After several weeks of detention in a Karachi cell, journalist Daniel Pearl was videotaped before his execution, and given the chance to make a statement. Among the last things he had to say was that he sympathized with those captured, and held, in Afghanistan and Guantanamo Bay.

Most of us would prefer to believe that Danny Pearl's final expression of solidarity with others detained who are held indefinitely, and arbitrarily, had been forced from him by his captors. It is far more palatable to think that Danny Pearl was coerced to imply that the U.S., too, is guilty of human rights abuses. Why else would a man facing his maker express empathy for those who look like his captors, and are jailed by the American government far away from that cell in Pakistan where this courageous, first time father-to-be was to face execution?

But, on the other hand, if Danny Pearl meant what he said, then we, as Americans, owe it to ourselves to find out why he said what he did. In order to do so, we have to examine the cycle of righteousness, and vengeance, that makes the actions of our own administration no different than those governments that comprise the so-called "axis of evil." Maybe Danny Pearl was inviting an inquiry into human rights violations worldwide, maybe even human rights abuses committed by his own government.

Guantanamo Bay has been in the news a lot lately, but what's lacking is a sense of context. What do we know about this naval base in Cuba, who are these detainees, where are they from, and why are they being held? If, from 9/11 on, we're holding so-called "terrorists," some of whom are American citizens, at a naval base in Cuba, and denying them constitutional rights based on the premise that they're on foreign soil, then we need to examine Guantanamo Bay, and our relationship to Cuba over the past hundred years, to establish that they're not on foreign soil. Even if those detained don't know why they're being held, we need to know why.

With Richard Nixon, we had a president that attempted to overthrow an election by means of a bungled burglary. With George W., we have our first president who was appointed, not elected and who, through linguistic sleight of hand, is attempting nothing less than overthrowing the judiciary with respect to his handling of prisoners at Guantanamo. There is no small irony in the fact that it was the Supreme Court who appointed the president, and it is the president who is now trying to silence the court.

By using a phrase like "enemy combatant," this administration has detained hundreds of people, around 660 to be exact, using "war on terror" as a camouflage for an all out assault on human rights. If nothing else, history has shown that words can be instruments of liberation, or torture. These detainees, many of whom are Muslims, have been denied access to lawyers, held for two years without being told why they're being held, or convicted of anything, not allowed to see evidence against them and, in some cases, deprived of the right to see their own families.

Do we think that we can bypass international humanitarian law, and the Geneva Conventions, both of which require specific protocols, and rights, for handling prisoners of war, by using the label "enemy combatants?"

The term, "unlawful combatant," was coined by Donald Rumsfeld, in 2002, to describe those members of Al Qaeda, and the Taliban, who would qualify as in some way illegal, or outside the realm of protection given traditional prisoners of war. To designate these detainees "prisoner of war" would grant them legal protection under Geneva Conventions, hence the innovative terminology. In less than a year, the word "unlawful" devolves into "enemy" as the corresponding war on terror intensifies.

The president has been adamant in not considering those captured prisoners of war, not granting them prisoner of war status, and the corresponding constitutional, and international, protections normally given. One of the arguments the administration makes to suggest that the detainees aren't prisoners of war by Geneva Conventions' standards is that they weren't wearing clearly marked uniforms. Such specious reasoning doesn't fly with those we like to think of as our allies abroad.

For an administration that has worked hard to earn the reputation of being linguistically-challenged, by a clever manipulation of language, it has managed to sidestep its responsibility to provide those detained with due process, and other rights, guaranteed by the Constitution, as well as international law.

What's more, the concept of unlawful combatant is, in itself, unlawful; one can either be classified as a "prisoner of war," or a "protected person" (civilian) according to the Geneva Conventions. This administration has said that anyone captured, and labeled a "terrorist," can be considered an enemy combatant regardless of where they are captured, or the circumstances surrounding their capture, thus evading what would customarily qualify as unequivocal human rights abuses.

Notably, it was Secretary of Defense Rumsfeld who, following Saddam Hussein's capture, called him among the most wanted war criminals of our times, and then proceeded to say that Saddam will be given those protections afforded a prisoner of war under the Geneva Conventions. Why is it that such a heinous war criminal, by virtue of being designated "prisoner of war," will be afforded those same protections denied to those currently detained at Guantanamo Bay?

Does our system of justice afford greater privileges to one who is believed to have committed mass atrocities than to those for whom justice is denied as a result of a hyperactive executive branch?

Human rights groups around the world have taken up the cause of these detainees, as well as some retired military personnel who fear this administration may be setting a bad example in its mistreatment of prisoners at the base. As this year's Nobel Peace Prize winner, Shirin Ebadi, suggests our so-called war on terror is being used as an excuse to trample human rights both in Afghanistan, and Guantanamo Bay.

Aside from linguistic chicanery, consider the religious fervor that this administration attaches to abstract terms like terrorism. If this isn't alarming in itself, then maybe this is: on November 21, an organization called "Human Rights Watch" wrote an extraordinary expose about human rights abuses committed by the current regime in Washington.

The piece was published in The Times of London, and was written by none other than the executive director of Human Rights Watch, Kenneth Roth, who asserts that at Guantanamo "hundreds have been held without charge for two years, abandoned in a legal black hole."

Roth goes on to say that even a consummate diplomat like Tony Blair can't find a way to justify their detention, and that by calling them "bad people," and "the worst of the worst," aside from showing that he has a way with words, our president has virtually condemned them. Even Law Lord Steyn, one of England's most senior judges, recently called holding prisoners at the base a "monstrous failure of justice," insisting they are being held illegally.

Where is our outrage, as a nation, when an organization like Human Rights Watch is compelled to investigate our practices with respect to protocol for ethical, and legal, treatment of those we incarcerate under the banner of a "war on terror."

While George W. is off fighting his holy war, his jihad against the jihad, why isn't anyone in Congress challenging the chief executive officer, and the executive branch, in its total desecration of due process, and jurisprudence, that has been in progress for nearly a thousand years? We have a Congressional Human Rights Caucus that is doing outstanding work examining, and exposing, reprehensible human rights violations around the world. Why aren't they investigating, and exposing, human rights abuses going on in our own backyard?

Funny, isn't it, how history works. Presidents Carter and Reagan both supported fundamentalist Moujahedeen, who we now call the Taliban and Al Qaeda, in Afghanistan. Indeed, they were once called "freedom fighters," under Reagan, and equipped with shoulder-fired rockets. A quarter of a century later, these same Taliban, or suspected Taliban, are labeled "terrorists," several thousand are thrown in Afghanistan prisons while several hundred are shipped off to Guantanamo, Cuba.

Just last month, one of the authors of the "Patriot Act," Viet Dinh, shocked everyone by expressing his concerns about the detention of U.S. citizen, Jose Padilla, the "dirty bomb" suspect as an enemy combatant. Dinh's suggestion that the administration's case against Mr. Padilla was "unsustainable" is stunning. That a former member of the Defense Department, and author of the "Patriot Act," would challenge this administration in its handling of cases surrounding 9/11 is likewise extraordinary.

Just today, a New York federal appeals court overruled Bush by saying that his administration cannot hold Padilla in a military brig, by labeling him an enemy combatant, without the prior authorization of Congress. The court ruled that the government needs congressional authorization before it can lock up American citizens on U.S. soil. Rumsfeld was ordered to release Padilla from military confinement in Charleston, S.C. within 30 days, saying that he may be transferred to civilian authorities to face criminal charges.

While this ruling applies only to American citizens on our soil, and not to those picked up in Afghanistan, it is the first step in addressing the legal tightrope this administration has walked with the catch phrase "enemy combatant."

In the past two years, much has come to light. We now know that we're not only holding American citizens at Guantanamo, but citizens of Australia, and the U.K. as they continue not to be told why they're picked up, what evidence there is against them, or to have representation. According to Philip Heyman, a Harvard law school professor and former attorney general under Clinton, denying these rights amounts to "overthrowing 800 years of democratic tradition," including habeas corpus and the Magna Carta.

The former Muslim chaplain at the base, Captain James Yee, is among the few who has been afforded the privilege of counsel, and a trial. At least he's been charged with something, however dubious, transporting classified material, and an attempt at prosecution has been made which is more than one can say for those prisoners to whom he has ministered.

A recent New York Times editorial was kind in characterizing the military's prosecution of Yee as "misguided." The prosecution centers around which pornographic Web sites the chaplain has allegedly visited, and with whom he has allegedly committed adultery.

With Yee's trial, we have a modern day version of Arthur Miller's play "The Crucible" in the making, and a "war on terrorism" as an alibi for yet another Salem Bay witch hunt. To look on the bright side, Captain Yee has not been detained, he was on payroll, and he hasn't been branded with the scarlet letter "E," for "enemy combatant." That said, his trial could prove to be a trailer for even more ludicrous trials to come.

In future, the Bush administration may even argue that detaining enemy combatants is another application of "Operation Iron Hammer," the military strategy by which attacks are launched against insurgents before they strike. It follows then that Guantanamo Bay becomes a model for our government's preemptive strike against its own citizens --- what better way to deter dissidence, and terrorism, than lock up & detention. It works for Castro---why not for George W.

Speaking of Castro, Iraq is not the first instance in which the U.S. has engaged in the noble task of reconstruction following a war. There was, of course, Cuba. Remember when the CIA overthrew democratic secularist Mohammad Mossadegh in Iran and, in 1976, trained anti-Castro activist Luis Carrilles to bomb a Cuban airliner killing 73 people? When we train them, they don't qualify as terrorists.

You may recall, too, that Carrilles claimed to have been funded by CANF (Cuban-American National Foundation), a Miami-based non profit organization, and powerful anti-Castro lobby in Washington that appears to have been involved in other acts that may justifiably be called acts of terror. In his zeal for this war, George W. may have forgotten the bombings, and other terrorist acts, that were carried out by anti-Castro Cubans living in the U.S. who were funded, and trained, by our very own Central Intelligence Agency.

Ironic, isn't it, that the U.S. locked up "terrorists," 30 years later, on the same soil as a government it attempted to overthrow via the CIA- backed downing of a Cuban jet liner by a member of a prominent Miami based anti-Castro organization. Were these acts any less "terrorist" acts because they received the blessing of the CIA in the name of bringing democracy to Cuba?

Can we, as citizens, sanction a White House jihad against a Taliban it once called "freedom fighters?" Is one jihad better than another, or are all jihads created equally? Will our war on terror someday be called a "jihad to end all jihads?" Must we bring our own popcorn to watch our government's great crusade to bring liberty to the Middle East, and anywhere else in the world we deem worthy of conquering? If somebody strikes oil in Havana, or we experience a massive sugar shortage, will we, once again, invade Cuba as we did following the Spanish-American War?

Among the many differences between Iraq and Cuba is that we destroyed Iraq in order to rebuild it, and that we fought the Iraqi people, not Spain, to make it a colony. Cuba, on the other hand, worked with American forces to win its independence from Spain. Curiously, as a consequence of the Spanish-American War, Cuba didn't win its independence, but merely its independence from Spain. Instead of being codependent on Spain, it merely transferred its codependency onto America, then onto the U.S.S.R.

In 1903, the naval base was leased from Cuba, by the U.S. for only $2,000 a year, the average rent for a studio apartment in Manhattan nowadays, until the 1980's when we acquired rights in perpetuity. Many Cubans believed then, as they do today, that the main purpose for the naval base was to control, police, and spy on Cuba.

American attempts to colonize, and control, events in Cuba, following the Spanish-American War with the Platt Amendment until Castro became prime minister in 1959 closely parallel American efforts to "rebuild" Iraq. Our attempts at controlling Iraq, and keeping the Middle East as a sphere of influence, must also include the installation of leadership that is fundamentally user-friendly to American interests in much the same way as Batista's puppet regime.

If the Bush administration has its way, we will see something like the Platt Amendment coming soon to a theatre near Baghdad.

While our efforts both in Cuba and Iraq are about colonization, we invaded Cuba under the pretext of "Spanish American War," and Iraq, as an extension of the Gulf War, but in Iraq, we're fighting the Iraqi people who we call "insurgents," whereas in Cuba, we fought Spain, thus our mission in Iraq is not dissimilar to our mission in Vietnam, and Korea.

The fundamental problem with fighting a people for control of its government is that those who live in the land under siege will ultimately demand and devise an end to occupation not unlike the French resistance to occupying German forces during World War II. While our current administration, like that of Spain's at the outset of the Spanish American War, may perceive itself as fighting a holy war, it is all but inevitable that the outcome, for this administration, will be not unlike the outcome was for Spain, and later Germany.

For all his bible thumping, one wonders if George W. ever made it past the Old Testament given the eye-for-an-eye mentality memorably captured on network television as the slain sons of Saddam Hussein were displayed which, by the way, was yet another violation of the Geneva Conventions.

While kudos are being handed out generously for Saddam's arrest, it's disconcerting to think that George W.'s foreign policy amounts to little more than the exercise of testosterone over reason. This president appears to suffer a bit of confusion between being middle aged and living in the Middle Ages either that or the great crusades are now in syndication.

By labeling detainees "enemy combatants," not only are they stripped of any constitutional rights, but they also become our adversaries in this holy war of the president's making which may just cost future generations the Bill of Rights for which those "insurgents," of the revolutionary war, fought so hard to obtain. What's more, this president appears intent on leading us back to the days of the crusades with phrases like "axis of evil." George W. has invoked the almighty more than any other president in modern times, which is curious in that, if nothing else, the Patriot Act demonstrates that the "author of freedom," and the author of the Constitution are not one and the same.

When Castro called for the removal of U.S. military bases from Guantanamo Bay, in 1978, the Soviet mission was bombed by anti-Castro Cuban exiles living in the U.S. A few years later, Ronald Reagan ordered the invasion of Grenada, and established a provisional government there.

After the invasion, Reagan's Department of Defense spent $43 million to refurbish the naval base at Guantanamo. This renovation sure came in handy under Bush senior's administration when open migration was allowed, and 32,000 Cubans were picked up by the Coast Guard, and taken there. It was obvious by then that naval base had another purpose besides being a foot in the door of a former colony.

Of nearly 7,000 detainees held by anti-Taliban forces in Afghanistan, only about 10% were sent to Cuba. It's curious why it is that no one talks about the detainees who are still in Afghanistan. The number of those kept at the naval base went from 50 in January, 2002 to 660 by November, 2003. Only recently has U.S. government agreed to release nearly a hundred of those detained, and little, if any, specific detail has been given as to their demographics.

By releasing these detainees, the U.S. is trying to deflect attention away from the real issue, which is its own hubris in holding prisoners in violation of those rights customarily afforded them.

When interviewed recently about the Pentagon's disclosure of the incarceration of children aged 13 to 15 at the naval base in Cuba, Rumsfeld concedes their detention, and then goes on to call these youngsters "very, very dangerous people" suggesting that while there isn't a formal process for adjudicating the charges they face, "we're keeping them down there to keep them off the street."

Using the same logic, why not round up all the members of the 18th Street Gang, and others, in Los Angeles, and ship them off to Guantanamo Bay-----heck, at least we'd be keeping them off the streets? Is it possible that our current secretary of defense regards the detention of teenagers, at the Bay, as a kind of after school program? Does the Pentagon suggest creating a military equivalent of "Juvey Hall" to try these youngsters?

Importantly, detainees only get a lawyer when they agree to plead guilty. Any counsel to which they are entitled would have to be appointed by the Pentagon, or approved by the Pentagon, and would be unable to discuss what evidence, or discovery, there is with his client. How can one be expected to get a fair trial when he's denied access to the evidence against him? While George W. reportedly would consider appointing civilians to an appeal panel of judges, he could remove these judges, thus they operate solely at the pleasure of the president.

Earlier this month, a German judge freed one of the Al Qaeda suspects, from the World Trade Center bombings, citing U.S. secrecy, and a policy of concealment that ironically worked against U.S. interests in that it helped obtain the release of so-called terrorists by international courts. By not making a captured Al Qaeda operative available for questioning, a Moroccan Al Qaeda suspect in Germany, who was an alleged member of the Hamburg cell that orchestrated the World Trade Center bombing, went free.

In a letter to Donald Rumsfeld , Kenneth Roth urged him to release, from Guantanamo, all members of the Taliban as well as any civilians who had no "meaningful" connection to Al Qaeda. One wonders if the term "meaningful" should read "provable" as, after all, isn't that which sets us apart from the cell, in Pakistan, where Danny Pearl's throat was savagely slit, that our system of law requires proof. The burden of proof, as always, lies with the prosecution, not with the defense.

Reportedly, at least 59 detainees are being held at the base who can be said to have no meaningful ties with the Taliban or Al Qaeda whatsoever. How can anyone argue that detention is necessary for national security when some of the civilians held have no ties to any so-called terrorist organization? Does the pervasive fear among security officials that someone has the potential to commit a terrorist act, pending his release, justify detaining someone with no history whatsoever of committing a crime let alone an act of terrorism?

Civilians typically qualify as "protected persons," according to the Fourth Geneva Convention, which clearly states that all combatants captured must be treated as prisoners of war, and are entitled to appear before a tribunal. Importantly, civilians, and those who cannot be directly linked with either Al Qaeda or the Taliban, have not only been detained in Afghanistan, but were transferred to Guantanamo.

The Geneva Conventions does allow the U.S. to detain prisoners of war without charging them for the duration of the war that prompted their confinement, but since the war with Afghanistan is over, these detainees must either be criminally prosecuted, or released. To do otherwise is in violation of the Conventions.

To comply with the Geneva Conventions means that one must charge a detainee with a crime formally, inform him of his rights, and permit him access to counsel. There is no legal basis for circumventing these protections. By an attempt at linguistic evasion, our government is setting a grave precedent.

If, as has been suggested, release of these enemy combatants, who comprise a special class, "terrorists," would be predicated on a victory in the war on terror, such a victory against terrorism might never come. What mandate do we have, or do we wish to set, that entitles us to hold detainees indefinitely?

More importantly, what kind of example are we setting to other nations when we ourselves refuse to take the moral high ground, defy international law, and hold soldiers from a now defunct, and as yet undeclared war, without due process?

The Supreme Court now faces appeals from those being held at the base. Two appeals the court has accepted were filed on behalf of 16 detainees - from the U.K. and Australia. The underlying, and fundamental, issue behind these cases is whether the judiciary should be subordinate to the executive branch of government. The attempt to subjugate the judicial branch to the executive branch is an ominous foreshadowing of the kind of totalitarianism we decry in countries like Cuba, and Russia.

Solicitor General Olson, whose wife was killed during the 9/11 attacks, urges the courts not to hear detainees' appeals citing a 53 year old Supreme Court ruling which posits that aliens under military detention abroad are answerable, and have privileges afforded them only by the executive branch, and the military, and not by the courts. So, the real question then is---do we consider Guantanamo Bay foreign or domestic? As we've seen, the base exists as an American stronghold "in perpetuity," so those held there are being held in a territory that is considered jurisdictionally as part of U.S.

If it helps one to sleep better at night to think that those being stripped of what are commonly considered human rights are "aliens," and foreigners, be advised that many at the base are U.S. citizens. One case in particular concerns Yasser Esam Hamdi, an American citizen of Saudi descent, who, by being labeled an enemy combatant, has been robbed of constitutional protection.

Would it be appropriate for a Russian citizen of American descent to be held indefinitely in a base created to confine so-called terrorists in Chechnya? Think of the rage that would ensue, and threats against the Russian government made by the current regime in Washington should this Russian-American prisoner be denied his civil, and human, rights.

Indeed, this administration's response to terrorists is not unlike Putin's response to Chechnyan rebels which leads one to wonder---is Russia moving closer to democracy, or is the U.S. moving closer to totalitarianism? There are always going to be those among us who will be content to point out----well, at least we're moving. They confuse movement with progress.

It's not enough to console ourselves with the knowledge that we're moving------we have to ask whether we're moving backwards or forwards. This administration is taking us backwards-- back to the days when leaders were appointed not elected, when due process, and survival itself, was a matter of privilege.

If we, as a nation, accept acting illegally, and in open violation of existing laws and treaties, how can we expect those who captured Danny Pearl, and who may yet capture others, to behave any better than we have? Has any empire that preceded us ever considered itself above the law without being a victim of its own arrogance?

Is any power that omnipotent that it can afford to act in opposition to the world community? Maybe this is what Danny Pearl meant when he expressed sympathy for others in captivity. Maybe he was suggesting that being righteous and being right isn't the same thing, and that injustice is no more justifiable when committed on a naval base operated by the U.S. than it is on a remote stretch of land, in a deserted cell, in Pakistan.

While one can hardly romanticize groups like the Taliban and Al Qaeda, on the other hand, to engage in the rhetoric of retaliation, and retribution, to operate under the misguided and dangerous notion that our efforts are divinely inspired and driven, is an affront to those generations of Americans who have given their lives to protect our civil liberties.

If words can be agents of torture, as well as liberation, then Danny Pearl's final words in support of those held in Afghanistan and Guantanamo may have been meant to shed light on the travesties being committed by our own government in the name of democracy; maybe his final hope was that the truth will make a guest appearance between gunshots.