Immediately after the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, United States officials began large-scale detentions of foreign Arabic nationals and Muslims. Many, if not most, of the detentions were on the flimsiest of excuses-overstaying a visa, for example-something that would ordinarily have been dealt with by a note saying "come in and get this straightened out."
It was important that these individuals were "detained" rather than "arrested." Had they been arrested, they would have been caught up in the criminal justice system, and they would have had access to its protections. If they were detained, they were in limbo, which is just what the Bush administration wanted.
A June 2003 American Civil Liberties Union report summarized a study by the Justice Department’s Office of the Inspector General that was "highly critical of what it shows to be the wholesale and long-term preventive detention of immigrants swept up in the months following 9/11." Immigrants were detained without charges being placed against them, and some spent eight months before they were released. They were denied access to lawyers. Hundreds of videotapes of their prison conditions were destroyed before the investigation team could look at them. The government refused to release the names of those detained. Deportation hearings were closed to the press and the public. No one yet knows the names of those detained, how many were detained, how many were deported, and how many are still locked up. The report was ready for release a year earlier, but Attorney General John Ashcroft blocked it because, in its original form, it faulted senior political appointees. (The Justice Department OIG report is online.)
An earlier Amnesty International report had expressed similar concerns:
…although they are not charged with crimes, many post 9.11 detainees are held in punitive conditions in jails, sometimes alongside people charged or convicted of criminal offences. AI has received reports of cruel treatment, including prolonged solitary confinement, heavy shackling of detainees (including use of chains and leg shackles) during visits or court appearances and lack of adequate outdoor exercise. There have also been allegations of physical and verbal abuse. Amnesty International has heard reports from family members that for weeks they have been unable to establish if and where their loved ones were being held. Lawyers have also had difficulty trying to establish where their clients are held or when they have a hearing before the immigration court. One lawyer recounted how he would call with a detainee’s name and date of birth and was told that they were ”not in the system” even though they were in detention. ("United States of America: Amnesty International’s concerns regarding post September 11 detentions in the USA," 14 March 2002)
Some individuals detained for overstaying their visas had in fact applied in proper and timely fashion for extensions, but the Immigration and Naturalization Service hadn’t acted on their requests because of its ordinary backlog. These visitors had done exactly what they were supposed to have done under U.S. law, but even so, they were detained under brutal conditions for long periods of time, and, in an unknown number of cases deported in the dark of night with nothing but the clothes on their backs without even the opportunity to call their families to say they were alive and more or less well.
At first, U.S. Attorney General John Ashcroft bragged about the numbers of detentions, but he fell silent after November 5, 2001, when the total reached 1182 detainees. The present total, says David Cole, author of the important new book on abuse of aliens by military and criminal justice officials, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (NY: The New Press, 2003), had by May 2003 risen to at least 5000. The number remains approximate because the government still refuses to release the names of the prisoners or the total number of them. It justifies this on the grounds of "national security."
Since September 11, 2001, writes Cole, "The government has selectively subjected foreign nationals to interviews, registration, automatic detention, and deportation based on their Arab or Muslim national origin; detained thousands of them, here and abroad; tried many of them in secret, and refused to provide any trials or hearings whatsoever to others; interrogated them for months on end under highly coercive, incommunicado conditions and without access to lawyers; authorized their exclusion based on pure speech; made them deportable for wholly innocent political associations with disfavored groups; and authorized their indefinite detention on the attorney general’s say-so."
And what have these thousands of extraordinary detentions, imprisonments and deportations accomplished? According to Cole, "Only five detainees (three noncitizens from the initial wave and two citizens picked up later as material witnesses) have been charged with any terrorist-related crime. Of those five, one has been convicted of conspiracy to support terrorism; two were acquitted of all terrorism charges; the government dropped all terrorism charges against the fourth when he pled guilty to a minor infraction, and the fifth is awaiting trial."
This is not the first time that, during a period of perceived threat, the United States government has placed people under detention primarily on the basis of ethnicity. During World War II, for example, the U.S. government placed more than 110,000 Japanese-Americans in concentration camps under Executive Order 9012. In addition, U.S. agencies forcibly brought 2000 persons of Japanese descent to the U.S. from Latin America during World War II. They were imprisoned as well.
What happened to them was an abomination, an atrocity, but it was not invisible and the detainees were not incommunicado. Those people were unjustly imprisoned, but they weren’t disappeared. People knew where they were and when the war was over they were set free.
Not so the case with thousands of foreign nationals detained or arrested without notice after 11 September 2001. They were imprisoned without cause, and kept invisible from attorneys who might help them or families living in pain because of their unexplained disappearance. Bush and Ashcroft are up to something new on the American scene.
In addition to the 5000 or more domestic detentions, there are the approximately 650 Afghanistani, British, Australian and other prisoners on the U.S. military base in Guantánamo Bay, Cuba. The U.S. invaded Afghanistan presumably because it provided a base for Osama bin Laden’s Al Qaeda organization, which had executed the 9/11 attacks on the U.S. The Taliban, religious fundamentalists who suppressed women and destroyed public art, were disliked almost everywhere, and no government seemed to mind that the U.S. went in determined to drive them from power. However loathsome the Taliban may seem to westerners, there remain serious questions about the legitimacy of the U.S. removal of hundreds of people-some of them as young as 13- to an isolated prison in a U.S. naval base in Cuba, where they are kept under brutal and repressive conditions, permitted no access to attorneys or any other visitors, held without formal charge for a term with no end other than the whim of the captors.
Why are these men and children still being held? Are they prisoners of war or kidnap victims? What are they being held for? Are they being questioned for information about bin Laden? How much useful information about bin Laden’s present whereabouts and activities could they possibly have? Are they being tortured? Since no one outside the government knows exactly how many persons were taken in the transports to Cuba, no one will know how many die there, their bodies buried in unmarked graves or dropped from boats at sea in the dark of night. Human rights organizations such as Amnesty International and Human Rights Watch have condemned the Cuban situation, but the Bush administration merely stonewalls all criticism.
The Bush Administration at first justified what it was doing by saying the threat was great and the people being so brutally treated weren’t American citizens anyway, so they weren’t entitled to the same protections as U.S. citizens. Even though the U.S. Constitution makes no distinction between citizen and non-citizen when it comes to such rights as legal representation, speedy trial, and cruel and unusual punishment, over the years, especially during times of war, the courts have been far sloppier with the application of those standards to non-citizens, particularly those connected to the opponents in war.
Bush insists these actions and powers are necessary in his war on "terrorism." But terrorism is a behavior or a strategy, not a nation or a group. We know where a nation’s boundaries are and who its citizens are; what are the boundaries and citizens of a behavior or a strategy? A war without an enemy is a war without end. So these extraordinary wartime powers have, almost without notice by the Congress or the press, become permanent powers. It will take huge work to rid us of them.
The Bush Administration justifies its secret detentions with the argument that if the government announced the names and numbers of its detainees and deportees, then Al Qaeda would know which of its operatives in the United States were now prisoners or had now been deported.
This is probably as absurd as it seems. The theory presumes that Al Qaeda leaders cannot do ordinary arithmetic, that they cannot subtract the missing from the accounted-for and figure out who is left and who is not.
This is very much like the U.S. military classifying and keeping secret its estimates of National Liberation Front casualties during the 1968 Tet Offensive in Vietnam. Surely the NLF knew how many soldiers it sent out in that operation and how many made it back. Surely the NLF was capable of subtraction.
In both instances-Vietnam in 1968 and the United States in 2003-the numbers were being hidden from the American people, not some real or hypothetical antagonist. But why?
How citizens become aliens
There is a third group of Bush Administration desaparecidos: American citizens Bush and Ashcroft simply decide are terrorists or involved with terrorists. Bush has asserted that he has the power to declare American citizens agents of enemy powers, and therefore not protected by international law, U.S. domestic law, or the laws of war. No previous American president has ever claimed such authority.
Bush has thus far exercised this extraordinary new presidential power over two American citizens, each of whom he has declared an "enemy combatant" and therefore subject to military rather than civilian law. They are Yasir Hamdi (arrested in Afghanistan) and Jose Padilla (arrested in Chicago). Both have been placed in military prisons where they have no access to lawyers, family or anyone else in the outside world; both, presumably, will be subject to secret military trials, secret post-trial imprisonment, and perhaps even secret executions.
No charges have been placed against Padilla. The government has insisted that giving him access to a lawyer would interfere with their continuing interrogation, and thus far the courts have gone along. He was originally detained as a material witness, then, when the federal judge in the case said he was entitled to an attorney and held the Justice Department in contempt for refusing to let him have one, the Administration declared him an "enemy combatant" and removed him from the jurisdiction of the court. His lawyers, with whom he cannot communicate, are appealing that status.
Bush has, in sum, taken the position that he has the power to declare individuals outside the protection of the law. Merely by his own declaration, and without trial or any kind of juridicial proceeding, ordinary visitors and ordinary Americans can be immediately deprived of every civil right provided by the Constitution of the United States and international law.
If someone is outside the law, then nothing done to that person is illegal. That is what medieval notions of ‘outlawry’ were all about.
This reminds me what Suetonius wrote about the executioners in Tiberius’ time confronted with the problem of virgins who had been condemned to death. The method of execution was strangulation, but it was considered impious to strangle virgins. So the executioners first raped their victims, then strangled them. Hitler made sure that everything he did was legal. He had the law rewritten to legitimize what he wanted to do and the German courts went along. Sometimes the greatest atrocities are accomplished under the crooked mantle of law.
Are there more desaparecidos about whom nothing is known because they don’t have family to call and call again looking for their missing sons or brothers or fathers? What of the seekers of American amnesty who have been deported in secret and who were delivered to hostile authorities in countries where they were jailed, tortured, or killed? Such countries do not send out press releases and they, like George Bush, do not permit their imprisoned and condemned to make telephone calls.
Thus far, public response to Bush’s and Ashcroft’s extraordinary arrogation of judicial power has been minimal. Cole attributes the lack of outrage to the simple fact that most of those affected are foreigners or resident aliens-largely Arabs and Muslims. The two cases of American citizens having their rights suspended on presidential order have aroused some commentary in the general press, but not much, and few members of the general public seem aware of either.
Government rarely gives back power it has taken. What will Bush and Ashcroft do next? If they can put Jose Padilla in cold storage in an unnamed naval brig, they can, in theory, put anyone there. No one knows how far they are willing to go.
In its astonishing decision upholding the administration’s refusal to allow Hamdi his ordinary Constitutional rights, the Fourth Circuit wrote, "while the Constitution assigns courts the duty generally to review executive detentions that are alleged to be illegal, the Constitution does not specifically contemplate any role for courts in the conduct of war, or in foreign policy generally….Hamdi’s status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer’s scheme. Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one…. The constitutional allocation of war powers affords the President extraordinarily broad authority as Commander in Chief and compels courts to assume a deferential posture in reviewing exercises of this authority. The executive branch is also in the best position to appraise the status of a conflict, and the cessation of hostilities would seem no less a matter of political competence than the initiation of them. (Hamdi v. Rumsfeld, 4th Circuit Court of Appeals, January 8, 2003)
That is to say: if the administration says we are at war, then the courts cannot argue; if the administration says civil rights must be suspended for certain individuals, the courts cannot interfere. Do you want to see a court capitulating to power? Read Hamdi v. Rumsfeld.
The United States, civil rights attorney Elaine Cassel reminds me, has three branches of government that, in theory, exist in an exquisite balance, each preventing the others from sinking into excess. That balance, she points out, is meaningless when two of the branches abdicate their responsibility, which is what has happened in regard to the administration’s claims of power in its ill-defined and potentially endless war on terrorism. The judiciary has, she says, "accepted without argument the administration’s claim that we are in a continuing time of war, a war without end, with an amorphous enemy that is whatever they say it is. And Congress is sitting idly by, making a few noises, but not enough to make a difference."
In the face of considerable public pressure and what might have been a Supreme Court decision going against them, Rumsfeld and Bush recently backed off a little bit on the Hamdi case: they’ve said he can have an attorney, but they haven’t agreed to let the attorney do anything for him. This may be one more White House distinction without a difference. (See Elaine Cassel, "Yaser Hamdi gets a lawyer: He just can’t do anything," Buffalo Report, 7 December 2007)
Now that the Bush administration has successfully claimed the right to create its own desaparecidos, and the courts (with the notable exception of recent rulings by the Ninth and Second Circuits) and Congress have been unwilling and unable to resist that claim, one might argue that the U.S. government is doing itself far more grievous harm than anything carried out or imagined by the 9-11 plotters, or any of their successors.
(This article appeared in Italian in the December 2003 issue of LatinoAmerica.)
BRUCE JACKSON, SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at University at Buffalo, edits the web journal BuffaloReport.com. His most recent book is Emile de Antonio in Buffalo (Center Working Papers). Jackson is also a contributor to The Politics of Anti-Semitism. He can be reached at: email@example.com