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Does Guantánamo Lock Terrorists In or Lock Our Ideals Out?
Hitler’s faithful lackey, Field Marshal Wilhelm Keitel, head of the Oberkommando der Wehrmacht (Supreme Command of the Armed Forces), gave an order in the Führer’s name on December 16, 1942 directed towards the combating of partisans which stated “Any consideration for the partisans is a crime against the German people.”
According to this order:
The enemy employs in partisan warfare communist-trained fanatics who do not hesitate to commit any atrocity. It is more than ever a question of life and death. This fight has nothing to do with soldierly gallantry or principles of the Geneva Convention.
This was a violation of international law and punishable at the Nuremberg War Crimes Trials (also known as the International Military Tribunal) in 1945-46. Wilhelm Keitel hung for it and for other similar orders.
In other words, orders like this asserted that laws don’t apply to some cases which the government considers too heinous to merit normally accepted standards of conduct. If we translated this order into modern parlance we would be left with the following:
“Any consideration for the terrorists is a crime against the American people.” Does this sound familiar to you? It should. It is what we’ve been told since September 11, 2001. Certainly, this is what Republicans have been telling us. And it is not only words; the Abu-Ghraib abuses are a concrete example of this attitude.
Food for thought:
“We have rejected the false choice between our security and our ideals by closing the detention center at Guantanamo Bay and banning torture without exception.” – President Barack Obama, January 2009
The German Army and SS shot such people, or “disappeared” them into concentration camps. Our own government has used assassination, but it has also resorted to something called “extraordinary rendition,” as well as imprisoning and torturing people without being charged with any crime and then holding them indefinitely without trial.
We have concentration camps too; they’re just not in the United States. The people we want “disappeared” go to Jordan, Iraq, Egypt, Diego Garcia, Afghanistan, Guantánamo, and elsewhere.
As former CIA agent Robert Baer has put it: “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear — never to see them again — you send them to Egypt.” (The democratic revolution in Egypt might make that country less of a sure thing for Americans who love Gestapo tactics).
Food for thought:
A new poll by WorldPublicOpinion.org [published in 2006] shows that the U.S. public, whether Republican or Democrat, strongly supports such protections. Robust majorities said that detainees should have the right to not be held indefinitely without charges or a trial, to have a lawyer, to have their treatment monitored by the Red Cross, and to neither be tortured nor threatened with torture.
The ACLU says of extraordinary rendition,
Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where — in the CIA’s view — federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards. This program is commonly known as “extraordinary rendition.”
Less than a half-century after defeating fascism, less than a half-century after putting Nazi war criminals on trial for violations of international law and then hanging them, we were already adopting those fascist tactics to defend our supposedly non-fascist system of government from the modern equivalent of those partisan tactics. After all, there is no difference. As is well recognized, one man’s terrorist is another man’s freedom fighter, which is exactly what a partisan is (the French Maquis in WWII being a case in point).
Extraordinary rendition got its start under President Bill Clinton, a Democrat; but things got worse not better, under Republican President George W. Bush’s administration. Bush’s attitude towards the law – international and domestic – was that it was what he said it was, and he claimed the freedom to ignore the law whenever it suited him through use of “signing statements” (Don’t you wish we could all avail ourselves of these?):
”The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief,” Bush wrote, adding that this approach ”will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.”
The order Keitel issued in 1942 stressed the extraordinary circumstances of the partisan threat to the Reich:
If the fight against the partisans in the East as well as in the Balkans, is not waged with the most brutal means, we will shortly reach the point when .the available forces are insufficient to control this area.
In other words, unless we want to lose, we have to do what we have to do to win. Similarly, when President Bush issued his signing order reserving the right to violate international law (torture prisoners) in defense of the United States, a senior administration official put his case in the following terms:
”Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case.”
The result of this “obligation to defend and protect the country as the commander in chief” did not, the International Military Tribunal at Nuremberg determined, excuse the extraordinary measures taken. In other words, the ends do not justify the means. We might look at our own “extraordinary” measures. The ACLU points out that “the extraordinary rendition program is illegal”:
It is clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment, ratified by the United States in 1992, and by congressionally enacted policy giving effect to CAT. As Congress made clear, it is the policy of the United States not to:
expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
Foreign Affairs Reform and Restructuring Act of 1998, (“FARRA”), Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (Oct. 21, 1998), reprinted in 8 U.S.C. § 1231, Historical and Statutory Notes (1999) (emphasis added).
In his recent decision (however reluctant) to resume military trials at Guantánamo (after promising to close it down while running for President in ’08 saying we didn’t have to make the “false choice” between our security and our ideals), President Obama seems to be admitting that some people don’t deserve the fair treatment our system of justice is dedicated to giving suspected criminals, whatever their crimes, that in order to defend the country, some actions in violation of international law (and our ideals) must be taken. This is the same argument, suffice it to say, that lay at the heart of Keitel’s 1942 order.
In a statement, Obama said,
“I strongly believe that the American system of justice is a key part of our arsenal in the war against al-Qaida and its affiliates, and we will continue to draw on all aspects of our justice system — including (federal) courts — to ensure that our security and our values are strengthened.”
That’s fine rhetoric, but his actions in this case belie the words. True, he has faced stiff opposition from Congress, but that “false choice” between our security and our ideals no longer seems a false choice since he made it himself. At the time he ordered Guantánamo closed in 2009 and made that statement about false choices, he went on to add,
“It is precisely our ideals which give us the strength and moral high ground to deal with the unthinking violence that we see emanating from terrorism organizations around the world.”
What are we to make of this claim now? We are surrendering the moral high ground and closing the distance between us and the terrorists. We are saying – like they are – that the ends justify the means.
When the President ordered the trials to resume, he reiterated that he remains committed to closing Guantánamo, now home to 170 detainees (some 250 in early 2009 and 775 total since 2002), of whom about 80 are expected to face trial by military commission.
One brutal fact is clear: closing Guantánamo after the fact won’t regain the high ground any more than cessation of shooting partisans and their civilian supporters could turn the clock back. (And yes, we are killing women and children too, but from greater range with guided munitions and drones). We call it “collateral damage” but the effect is the same as lining them up in front of a trench and mowing them down.
Dead innocents are dead innocents.
So far more than two dozen Guantánamo detainees have been charged but some were dropped in January 2009 when Obama gave the order to halt the commission process. You remember the furor at the time, that we were setting terrorists free to work their evil wiles against us down the road. Six have been convicted the sentenced.
Food for thought:
The Supreme Court long ago set the precedent, in Ex parte Milligan (1866), that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional (Crooks & Liars, February 10, 2010)
One detainee was tried in civilian court in New York and was convicted in November 2010 of only one of the 280 charges against him. This result was the excuse to put an end to any further civilian trials, despite the fact, and it is a fact, that only civilian trials are legal. The Republicans who had once been in favor of trying terrorists were now, with Bush out and Obama in, violently opposed to it, calling it a reckless measure. By doing so, Obama aligned himself (they said) squarely with the terrorists.
The problem seems to be that certain people want these men to be found guilty – no matter what the evidence says. As satirist Stephen Colbert once joked, “they must be guilty or they wouldn’t be there.”
And that seems to be the prevailing attitude. It is not, however, how our system of justice is supposed to work. It is not only morally wrong, it is illegal. It is contrary, as President Obama once said, to our American values. It is not, however, incompatible with the values of the fascist state known as the Third Reich, which issued the order I cited in my opening paragraph.
Glenn Beck (and he is far from alone) wants to be like Wilhelm Keitel and his beloved Führer. He longs to issue that 1942 partisan order all over again:
Beck: This court has done some frightening. frightening things….If I’m president of the US, I would go on National television and say—’ladies and gentlemen, the Supreme Court said that we don’t have Gitmo so that is over. We’re going to release all of them, but I want you to know from here on out our policy is to not have prisoners. We’re going to shoot them all in the head.’
If we think they are against us, we’re going to shoot them and kill them—period because that’s the only thing we’ve got going for us—cause we can put them away and get information. If we can’t put them away and they’re going to use our court system—kill them.
There is a choice we must make as a society, and it is not a false choice. It is the choice between our values and expediency. Are we going to make the argument that virtue and therefore justice, is sometimes inconvenient? If the laws we make have that little hold on us, they are of very little use. Hypocrisy should not come so easily.
By the way, many have made that choice, by joining the National Campaign to Close Guantánamo, including Trent Reznor, Jackson Browne, R.E.M., and Pearl Jam, and others. And Stephen Colbert? He signed the petition on air, on the Colbert Report, on October 31, 2009.
This is not just a Democratic problem, or a Republican problem. It is an American problem. And it sounds like it’s time to pass that petition around again, suggesting this time that American, not fascist values, should be observed. The moral high ground, once sold so cheaply, is not easy to regain.