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Habeas-Free Guantanamo

The Detainees and the Bush Tyranny

by JENNIFER VAN BERGEN

Both the Guantanamo detainees and the so-called "unlawful enemy combatants" scored a major victory yesterday when the Supreme Court ruled that the prisoners may be heard in U.S. courts. In the Guanatanamo detainee case, Rasul v. Bush (which was consolidated with Al Odah v. U.S.), the Department of Justice had argued that the detainees, all foreign nationals held on Cuban territory, had no rights in U.S. courts. In the "unlawful enemy combatant" case, Hamdi v. Rumsfeld, the DOJ argued that the executive may indefinitely detain anyone it decides is a threat to national security.

Justice Sandra Day O’Connor, upholding the prisoners’ rights to be heard in court in the Hamdi case, wrote: "A state of war is not a blank check for the president." Justice Stevens wrote in the Rasul case that non-citizens held in territory over which the U.S. exercises exclusive jurisdiction may challenge their detention in federal court.

A Findlaw summary of the rulings remarked that the Court’s rulings "indicate that the Bush administration’s legal policy has been nothing less than a broad assault against the fundamental principles of the rule of law that have existed for centuries."

While many share this view, few Americans know that the very reason the administration chose Guantanamo was in order to avoid a so-called habeas corpus challenge. This is not speculation. It was revealed in a 2002 essay by a student at the National War College who claimed he was privy to both classified and unclassified material. According to the student, Col. Daniel F. McCallum, Guantanamo was chosen, at least in part, because it presented a "minimal litigation risk." McCallum states baldly:

The litigation risk faced by DOJ was access to federal courts for the purpose of filing a writ of habeas corpus. Habeas corpus requires judicial review of the detention of a person to determine if the detention is lawful. An important factor in assessing this risk is that this only applies to citizens and foreign nationals if they are held within the United States.

For Guantanamo, "since the property belong to Cuba, DOJ assessed the litigation risk as minimal," and "[c]onsidering the strained foreign relations we have with Cuba, [the Department of State] assessed the minimal negative impact acceptable" writes McCallum.

Thus, it was the administration’s intention in choosing Guantanamo to deny due process and judicial review to detainees.

This evidence of a concerted effort by the executive to evade constitutional protections, along with growing discontent many Americans feel with the PATRIOT Act and daily revelations about the torture of prisoners in Iraq, Afghanistan, and Guantanamo, raise the question whether the administration’s actions indicate a plan to subvert democracy.

The trail leading from Abu Ghraib to the highest reaches of government supports the view that, as Human Rights Watch observed in a recent report, the pattern of abuse at Abu Ghraib "resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside" and that the administration "effectively sought to re-write the Geneva Conventions of 1949 to eviscerate many of their most important protections."

Furthermore, the fact that the Pentagon and the Justice Department "developed the breathtaking legal argument that the president, as commander-in-chief of the armed forces, was not bound by U.S. or international laws prohibiting torture when acting to protect national security," confirms a view that would have seemed irrational two years ago, but that Bush himself jokingly stated: that he preferred a dictatorship … as long as he was the dictator.

Some years ago, a Boston University law professor named Jane Maslow Cohen wrote a legal tract titled Regimes of Private Tyranny: What Do They Mean to Morality and For the Criminal Law[1]? Although Cohen’s article describes "private" tyrannies, it is interesting to apply the elements of these "regimes" to a "public" entity, namely, the Bush administration. In its full-blown form, these private regimes of tyranny contain the following elements: the prohibition of coalition formation, abolition of the vote, control over voice, violence and threats of violence, hostage-taking and threats of hostage-taking, the campaign against exit, domination as politics – domination as law.

It is easy to fit the Guantanamo and unlawful enemy combatant detentions, and the Abu Ghraib prison abuses into this scheme. They cover almost all the categories, in fact. A conservative collection, leaving out the abolition of the vote (who expects prisoners to have a vote?) the prohibition of coalition formation (again, who expects prisoners to be allowed to form coalitions?), and the campaign against exit (prisoners by definition, may not "exit" the relationship), nonetheless leaves us with : control over voice, violence and threats of violence, hostage-taking or threats of hostage-taking, and domination as politics — domination as law.

It would be easy to dismiss this list altogether in relation to prisoners except for the fact that none of the persons detained in Guantanamo, military brigs as unlawful enemy combatants, or at Abu Ghraib, was ever charged or determined by a court of law to be terrorist or criminal suspects at all.

Thus, one must view Cohen’s criteria for tyranny with a bare face. Without a legitimate pretext for imprisonment, the detentions are exactly what they are, just as Cohen describes them: tyranny. The detentions of these persons IS control over voice, violence, hostage-taking, and domination as politics and as law. They are tyranny and they are nothing less than tyranny. In other words, what the Bush administration has done is just what Bush said he wished he could do: become a tyrant.

Not only has this administration’s actions mirrored those of a tyrant, but there have been whisperings of the imposition of military law.

It is time Americans fight back. It is time we get this crew out of office.

JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, coming out September 1, 2004, Common Courage Press. She can be reached at: jvb000@earthlink.net