Empire without Law

By Schell, Jonathan | The Nation, May 31, 2004 | Go to article overview

Empire without Law


Schell, Jonathan, The Nation


On April 28 the subject of torture was discussed in oral arguments before the Supreme Court. The context was not the abuse of Iraqi prisoners by American soldiers in the prison complex at Abu Ghraib. The photos of those events would not be released for another eight hours, by 60 Minutes II. Rather, the context was the detention of two US citizens, Yaser Hamdi and Jose Padilla. The Bush Administration, in the person of Paul Clement, Deputy Solicitor General, was asserting the President's right to designate, at his sole discretion, US citizens as "enemy combatants" (a legal neologism), and then imprison them indefinitely without the right to see counsel or to have any other communication with the outside world. The lawyers for the defense were arguing that the President's claim destroyed one of the most ancient and fundamental rights of Anglo-Saxon jurisprudence, habeas corpus, which requires, in the words of the Magna Carta, of 1215, that "no free man shall be taken or imprisoned ... except by the lawful judgment of his peers or by the law of the land."

At one point, Justice John Paul Stevens asked Clement what assurances he could give that the citizens detained under his doctrine of unfettered executive discretion were not being tortured. Clement answered that the courts and the country must simply have confidence that the executive, in obedience to its treaty obligations, would never do such a thing. (He failed to note that Defense Secretary Rumsfeld had specifically exempted prisoners in Guantanamo from protection by the Geneva Conventions.) Clement opined that information given under torture was not reliable, and so "the judgment of the people who do this, as their responsibility, is that the way you get the best information from individuals is that you interrogate them, you try to develop a relationship of trust."

Asked by Justice Ruth Bader Ginsburg whether, in keeping with habeas corpus requirements, a citizen should not "have a right to bring before some tribunal himself, his own words, rather than have a government agent say what was told to him," Clement answered that in the Administration scheme the interrogation of the detainee was itself the opportunity.

That very evening, the issues raised in the abstract legal discussion before the Court sprang to shocking life in the pictures from Abu Ghraib, giving everyone a chance to judge just how much due process such interrogations supplied. It seemed unlikely that the naked, bound, hooded prisoners heaped in a pile were being given a good opportunity to prove their innocence, or that the naked prisoner facing snarling attack dogs, which soon were loosed upon him, was enjoying the protection of international treaties signed by the United States. Such were the revolting deeds to which the high-sounding doctrine led in practice.

But (someone might imagine) those prisoners were Iraqis; Americans would never do such things to other Americans. This proposition, too, had in a way been tested. Many of the guards at Abu Ghraib were chosen precisely because they had "worked as prison guards or corrections officials in their civilian jobs," in the words of the report on Abu Ghraib by Maj. Gen. Antonio Taguba. Two had been charged with abusing prisoners. Also, many of those swept up in the detentions in the United States after September 11 were abused, as a Justice Department report by the Inspector General has shown.

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