Monday, June 23, 2008

When Death is the Arbiter

Question: So, how can you tell if you’re with “professionals”?

Answer: If, when the guy wearing the black hood gets up, the other guy is still breathing.

Put another way – and, according to the Associated Press, a CIA lawyer did exactly that before a gathering of military intelligence officers from the Pentagon a little more than a year after U.S. bombs and missiles fell on Afghanistan – “Torture is basically\y subject to perception. … [But] if the detainee dies, you’re doing it wrong.”

At one time, and not that long ago, interrogators concentrated on wheedling useful information out of detainees, not whether the one detained was alive or dead.

That part of the Bush push to roll back decades of precedence and international law concerning the rights of detainees never made any sense. If a detainee doesn’t evince any indication of knowing the answers to the interrogator’s queries, it just might be that the prisoner doesn’t know for one or more reasons – e.g., wrong person identified either by error or purposefully to get them out of the way; or the detainee was in the wrong place at the right time to be caught up in a military sweep.

What does one do when there are hundreds of detainees at, say Guantanamo Naval Base, Cuba, who insist they are not al-Qaeda fighters or Taliban adherents, that they were mistakenly identified as enemy fighters to U.S. troops, arrested, and flown to Guantanamo without further investigation until months after their arrival? Never charged, never arraigned, imprisoned on the word of perhaps a single person whose identity might be unknown, nevertheless still classified as an “unlawful enemy combatant” by a Combat Status Review Tribunal (CSRT) – all the while being denied qualified counsel to mount an effective challenge to the heavily biased and thoroughly foreign “legal” procedure.

If you are in the Bush administration, you ignore the safeguards of the Constitution that require either a speedy trial or a habeas corpus hearing by claiming that the powers of the commander in chief in wartime (duly announced by the commander in chief but not declared by the Congress) trump the other two branches of government – including the power to interpret the Constitution and statutes passed by Congress and issue presidential findings and regulatory decisions.

That the administration has been on shaky legal ground seemed confirmed in the wake of the Supreme Court’s June 12 decision on the right of the Guantanamo petitioners to have habeas corpus hearings in federal courts. Now the government wants time to re-write and to add new details to the evidence they will use at any hearings. Yet they were quite ready – and did – use what they now admit by this request what was incomplete and unsubstantiated “evidence” before the CSRTs that were the sole review (at that time) of the status of the detainees.

For sure, a dead detainee will not provide any information to anyone on any subject – other than perhaps prima facie evidence in a murder or war crimes trial for interrogators who violate international laws or domestic statutes.

Equally, detainees who are isolated with no way to challenge their detainment are effectively “dead” to their families and friends. This too, perhaps, requires some sanction so that future administrations not try the same tactic.

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