Christy Hardin Smith: Stand For Liberty And The Rule Of Law

By Christy Hardin Smith, Firedoglake

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In the above YouTube, Bishar Al Rawi, Iraqi national and long-time resident of London, describes his CIA rendition to FRONTLINE/World. Bisher was one of many “ghost” prisoners held by the CIA, and was released without charge after four years in captivity.

The fact that journalist Stephen Grey learned of the systematic program of the US to use extraordinary renditions from the man who would later become the fleeting head of the CIA, Porter Goss, is one of the many twists and turns of this story. And it is a story that needs no embellishment (from the prologue of Stephen’s book, Ghost Plane):

The Grave received its name because the cells are little larger than coffins. Pay close attention, because this is a key destination in the War on Terror. Admittedly, it is not where President George W. Bush would take visitors on a showpiece tour, and yet here in this dungeon, on this day, 17 December 2002, are at least seven prisoners who claim to have arrived courtesy of the United States.

In charge of the centre is a man named George Salloum, an officer of Syrian military intelligence, dressed smartly in trousers, a golf shirt and a pair of leather shoes. He might seem an unlikely ally for the United States. By profession he is the head of interrogation of suspected terrorists at the Palestine Branch. In short, a torturer….

In cell no. 2 is Maher Arar, a Canadian wireless technician who was deported to Syria from New York in a private American jet. As a teenage schoolboy he once had a part-time job folding towels at that Sheraton Hotel. But he left the country at the age of seventeen and never returned – till now. He will later be found innocent of all charges. Every day, Maher is brought out of his cell to face Salloum and his team of interrogators. Among their worst methods is one known as the as the “German chair”, so-called because it was said to have been taught to them by the Stasi, the East German secret service. It has an empty metal frame with no backrest or seat and is used to stretch the prisoner’s spine to near breaking point….

The details go on and on and, in the case of Arar and many, many others, there were no charges filed because there was no connection to terrorism ever found. We picked up an innocent man — several, in fact — and tortured them because we were more interested in retribution at any cost than producing justice. That, for me, is the bottom line.

Torture and America

FRONTLINE/World and Stephen Grey have put together a harrowing and powerful look at the practice of “extraordinary rendition.” This is the practice of our government picking up a suspect and taking them to another nation for interrogation — a nation which we know uses torture techniques. A practice that is controversial for a number of reasons, not the least of which because people who are tortured will say anything, do anything, to make it stop — meaning that getting actionable, substantiated information from those being tortured is not exactly reliable. We have also simply been “disappearing” suspects, sometimes for years at a time, with no public accountability for the practice until journalists like Stephen and Dana Priest and Jane Mayer began to unravel the black sites and logistical twists and turns involved.

This began because the innocents who had been held in the name of the US began to be released from the darkness. And journalists began to search for them, to unravel the facts, and to bring their treatment out into the sunlight.

…In waterboarding, suspects are restrained on a platform with a cloth or cellophane placed over their heads; water is then poured over the cloth, creating the sensation of drowning. Military and intelligence historians say the practice dates to the Spanish Inquisition. After World War II, the United States prosecuted Japanese soldiers for waterboarding American prisoners….

As Jane Mayer has amply shown, as has Marty Lederman, the United Nations Convention Against Torture and U.S. law both prevent the outsourcing of torture. But, as Marty has also pointed out, the Bush Administration has been exploiting a loophole in the law to end-run its intent and claim that it doesn’t know to a certainty that what they are doing is outsourcing torture (Obsidian Wings has more.). Never mind that torture techniques have been shown to provide wholly unreliable information (PDF)– and to close out the ability to gain useful, actionable information via more humane methods. Or that this conduct makes both American military personnel (PDF) as well as civilians traveling abroad substantially less safe.

Depends on what your definition of “torture” is. Dick Cheney and I differ substantially on that point, I suppose. And, as Dan Froomkin demonstrates at Neiman, the Bush Administration’s credibility on this subject is very thin.

It was at the point where the Attorney General of the United States had the audacity to say to Congress that the United States Constitution does not guarantee the right of habeas corpus to citizens of this country that I knew the Military Commissions Act and every other attempt at legitimization of this wretched perversion of our rule of law was going to be fought for with every last dirty trick in the Bush Administration’s arsenal. That he would make such a brazenly false statement was appalling enough, but that he would do so to the Senate Judiciary Committee was outright heresy.

And yet, despite knowing the inherent weaknesses of these positions, we have yet to restore habeas corpus protections to those that the United States holds as prisoners, “unlawful enemy combatants” or not. It is a necessary first step toward restoring what we ought to be as a nation.

Why should you worry about this, when you aren’t some prisoner picked up and held in Guantanamo? A lot of reasons:

“This is the key protection that people have if they’re held in violation of the law,” said Erwin Chemerinsky, a Duke University law professor who has criticized the administration’s actions on civil liberties. “If there’s no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?”Chemerinsky was joined by Douglas Kmiec, a Pepperdine University law professor and former Justice Department official under Presidents Ronald Reagan and George H.W. Bush.

If Gonzales’ view prevailed, Kmiec said, “one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.”

Justice Department spokesman Brian Roehrkasse said this week that Gonzales stood by his remarks but was asserting only that the text of the Constitution does not guarantee habeas corpus. The attorney general recognizes, Roehrkasse said, that the Supreme Court has declared “the Constitution protects (habeas corpus) as it existed at common law” in England. Any such rights, he added, would not apply to foreigners held as enemy combatants.

Habeas corpus was recognized in English law at least as early as the Magna Carta, in 1215, and perhaps earlier. In the United States, it refers to bringing a prisoner’s case before a federal judge, who has the power to order the government to release anyone who is being held illegally.It has become an issue in Bush’s efforts to hold military captives at the U.S. naval base in Guantanamo Bay, Cuba, with little or no access to civilian courts. The Supreme Court ruled in 2004 that that those prisoners could file habeas corpus claims in court, rejecting the administration’s argument that inmates held outside the United States had no such right. That ruling was based on the court’s interpretation of laws passed by Congress and did not discuss whether Guantanamo inmates had a constitutional right to habeas corpus.The distinction is potentially crucial, because Congress, in the law signed last October, prohibited federal courts from reviewing habeas corpus suits by Guantanamo prisoners or any other noncitizens held as enemy combatants. The law’s validity depends on whether the Supreme Court concludes that the prisoners’ constitutional rights are being violated.

We are better than this as a nation. We either stand up for those ideals that our forefathers risked their lives to obtain for all of us — the right of habeas corpus being so dear to them that they enshrined it in the text of the Constitution itself, rather than leaving it to the Bill of Rights. Or we stand for nothing at all but whatever is expedient in the moment according to the whim of the imperial presidency.Make no mistake, what the Bush Administration and its Attorney General are proposing under the fearful guise of a never-ending national security emergency is to collapse the three branches of government into one all-powerful executive during a time of self-declared, non-ending war of their own making.

I choose liberty. What say you?