[News] The Dangerous World of Indefinite Detentions
Anti-Imperialist News
news at freedomarchives.org
Wed Jun 10 12:01:37 EDT 2009
While this is a rather long piece - it is extremely significant
http://www.counterpunch.org/vanbergen06102009.html
June 10, 2009
From Vietnam to Abu Ghraib
The Dangerous World of Indefinite Detentions
By JENNIFER VAN BERGEN
and DOUGLAS VALENTINE
Where you find administrative detentions, you are
likely to find torture. The reason is simple and
can be traced to the elements of administrative
detention itself: the absence of human rights
safeguards and normal legal guarantees such as
due process, habeas corpus, fair trial,
confidential legal counsel, and judicial review;
vague and confusing definitions, standards, and
procedures; inadequate adversarial procedural
oversight; excessive Executive Branch power
stemming from prolonged emergencies; and the
involvement of the Central Intelligence Agency
(“CIA”) or other secret, thus unaccountable, Executive Branch agencies .
Without such protections, justice does not work
and human rights are jeopardized. As William F.
Schultz, Executive Director of Amnesty International, put it:
“
we are witnessing the orchestrated destruction
by the United States of the very basis, the
fragile scaffolding, upon which international
human rights have been built, painstakingly, bit
by bit, since the end of World War II.”
The system was been intentionally broken by the
Bush Administration, just as it was by the
Johnson and Nixon Administrations during the Vietnam War.
Few legal scholars or government officials have
discussed the historically established connection
between administrative detentions and torture.
The subject only came into public consciousness
with the revelation that U.S. soldiers were
torturing terrorist suspects at Abu Ghraib Prison
in Iraq, Bagram Airbase in Afghanistan, and the
detention facilities at the U.S. Naval Base in
Guantanamo, Cuba. Since then, American and
foreign journalists and human rights activists
began to raise suspicions, subsequently borne
out, that U.S. soldiers and CIA officers were
routinely torturing terrorist suspects at
numerous detention centers around the world.
The Vietnam detention procedures provide a clear
and compelling flow chart of the web of
connections between administrative detentions,
intelligence laws, national security courts (i.e.
courts intended to deal exclusively with national
security concerns), violations of international
law (particularly the Geneva Conventions), and
torture. These components now also appear in U.S.
law and policies in the War on Terror.
The Phoenix Program and the War on Terror
In June 1967, the CIA launched a screening,
detention, and interrogation program in Vietnam
that was a major building block of what
eventually became known as “the Phoenix Program.”
By the end of the Vietnam War, Phoenix had become
notorious for its paramilitary death squads,
which claimed between 20,000 (according to the
CIA) and 40,000 (according to the South Vietnamese) lives.
Seldom, however, has Phoenix been recognized for
the huge detention and interrogation facet that
enabled the CIA to compile computerized
blacklists of suspected terrorists. As in Iraq
(and the unknown “black sites” where so-called
“ghost detainees” are held), where the U.S. does
not keep track of civilian deaths, it is not
known how many innocent people were caught in the
Phoenix dragnet. It is only known that Phoenix
led to the torture and murder of many, possibly
thousands of innocent Vietnamese people.
The basis for the screening, interrogation, and
detention aspect of Phoenix was established in
1956, when the fledgling Government of Vietnam
issued Ordinance 6, which provided for the
administrative detention of “security
offenders.” Ordinance 6 was succeeded by several
Decree-Laws and Ministerial orders, the most
significant being the 1965 “Emergency Decree Law
3/65.” This law provided for “administrative
detention of persons considered dangerous to the
national security, without court hearing.” The
detention orders were referred to as “An Tri.”
Today, the War on Terror has engendered three
American detention “laws” to deal with the new
enemy of the twenty-first century. These resemble
An Tri detentions in numerous and various ways as
discussed in the next section and the remainder
of this paper. These “laws” are: Section 412 of
the PATRIOT Act, which provides for mandatory
indefinite detention of aliens considered
dangerous to national security, the presidential
Military Order of November 13, 2001 (and the
accompanying Military Commissions procedures),
and the presidential designations of so-called “unlawful enemy combatants.”
Through his Military Order, Bush granted himself
extraordinary powers to identify al Qaeda members
and those who harbor them, and to detain these
people without review by the judicial or
legislative branches of government. The
subsequent Department of Defense Military
Commissions Order No. 1 (“MCO”) was the “enabling
law” that put the Military Order into effect.
Finally, there came Bush’s “unlawful enemy
combatant” (“UEC”) designations of United States
citizens, designations not based on his Military
Order but potentially triable under the MCO.
In addition to the lack of due process, the main
theme of these laws is overarching executive
power. In none of them are the incarcerations
judicially imposed or based on proof of criminal
activity that would be admissible in a court of
law. In each, an official of the Executive Branch
has near-complete unilateral authority to
determine who is detained and for how long. Those
held under Section 412 are subject to periodic
review by the Attorney General and his
determinations are appealable only to the United
States Court of Appeals for the District of
Columbia. Those subject to the Military Order may
not appeal to any court of law, including
international courts. The Administration claimed
that those held under Bush’s unlawful enemy
combatant designations had neither due process nor habeas corpus rights.
More than anything else, it is this theme of
near-absolute, unreviewable executive authority
that has the potential to bring Phoenix home to roost.
During the Vietnam War, the Phoenix
Program coordinated the paramilitary and
intelligence components of some two-dozen
counterinsurgency programs in an attempt to
"neutralize" the “Vietcong infrastructure”
(“VCI”). The euphemism "neutralize" meant to
kill, capture, make to defect, or turn members of
the “infrastructure” into double agents. The word
"infrastructure" referred to civilian members of
the “shadow government” that was managing the
insurgency in South Vietnam. In other words, the Vietcong or VCI.
Members of the infrastructure were referred to as
“national security offenders” no matter what
their ideology; but if they were members of the
Communist Party, they were also referred to as
“Communist Criminals,” insofar as Communism had
been outlawed and was a separate crime of status.
Screening virtually everyone in South Vietnam,
and then detaining and interrogating suspects,
was the systematic way the CIA sought to identify members of the VCI.
While no extant copy of Emergency Decree 3/65 has
been located, a later renewal of the law, issuing
from the State Department’s Agency for
International Development, “continues the
emergency power of the Executive [of Vietnam] to
temporarily detain people considered to
constitute a danger to the National Security by
publicizing or carrying out Communism in any
form.” Temporarily meant two years, renewable “if
the offender is considered still to constitute a danger.”
Screening, detaining, and interrogating suspects
was also how the CIA produced informants,
defectors, and double agents. Capture of VCI was
the object. But VCI of “high value” (a Phoenix
term recently exhumed by the CIA and used in the
War on Terror and in Iraq), were usually
accompanied by bodyguards, so midnight
assassinations and ambushes of high value VCI was
the most common form of exploitation of the
intelligence gathered through informants,
defectors, double agents, and interrogations.
Under the An Tri administrative detention
emergency decree, due process was totally
non-existent for suspected members of the VCI .
People whose names appeared on Phoenix blacklists
were subject to midnight arrest, kidnapping,
torture, indefinite detention, or assassination,
simply on the word of an anonymous informer.
After capture and interrogation, if they were
still alive, they were tried by “special courts”
or military tribunals not unlike those proposed
by Bush that were not staffed by legally trained
judges. As one official document noted: “In the
Special Courts which act in terms of special
laws, criminal procedures are reduced to a strict
minimum.” There was “no preliminary investigation
although the offense is of a criminal nature” and
no appeal. The judges could not “pronounce
extenuating circumstances, suspend action, nor
punishment under the set minimum.” As a result,
“the principle of individualization of punishment
cannot apply, which is in flagrant contradiction
with the concept of justice and responsibility.”
Legally unobstructed by the concepts of justice
and legal responsibility, the CIA was the hidden
force behind Decree 3/65 and its special courts,
just as it was the hidden force behind the
Phoenix Program. Likewise, the CIA is one of the
hidden forces behind the reconstruction of Iraq’s
Ministry of Interior, secret police forces, and
judicial system, and the interrogations of
detainees at various detention centers.
To escape responsibility and ensure “plausible
deniability,” the CIA in Vietnam concealed the
detention aspect of Phoenix under cover of the
U.S. military/civilian administration in charge
of the reconstruction of South Vietnam. The
Vietnamese army and police Special Branch, along
with U.S. military forces, provided the bulk of
manpower and facilities used to “screen”
detainees for the CIA, in the same way the CIA
and military intelligence today train locals to
apply Pentagon-mandated procedures to screen
terrorist suspects abroad and maintain military
control of prisons in Iraq and Afghanistan.
The CIA built Phoenix operations centers in each
of South Vietnam’s 240 districts, in order to
secretly identify and neutralize VCI. Often, the
CIA relied on the type of heavy-handed military
sweeps now being conducted in Iraq. These sweeps
invariably filled makeshift detention centers
(barbed wire cages with tin roofs) with innocent
old men, women and children, since the actual VCI
had penetrated the government’s military and
police security services and often knew when the
sweeps were coming. As in Iraq today, active
insurgents were often better able to evade capture than innocent persons.
By its own admission, the CIA had no effective
procedure of distinguishing actual “national
security violators” from innocent peoplean
innocent person perhaps being, for example, a
rival businessmen being blackmailed by the local Province Chief.
In all, the interrogation and detention centers
there had substandard living conditions and
indiscriminate crowding of POWs, common
criminals, and VCI suspects. There was no way of
knowing who should be interrogated, jailed, or released.
Like the administrative detentions under the
PATRIOT Act and Bush’s Military Order, the
Vietnamese-staffed military tribunals and
security committees that heard cases could
repeatedly delay someone's “trial.” An Tri
hearings could be delayed for up to two years or
moreusually until the proper bribe was paid.
When brought to trial, a person was unlikely to
have a lawyer, which did not really matter, as
there was no due process, no habeas corpus, and no need of evidence to convict.
The CIA’s abuses could not be hidden forever and
eventually pressure from the Red Cross and
liberal American Congresspersons forced the CIA
to confront the same legal questions about
detainees and “enemy combatants” (a designation
that implies guilt before any is proven) that are now finally being raised.
Detentions Under Present-Day Federal Law
The detention provision of the PATRIOT Act added
a provision to the Immigration and Nationality
Act (INA), mandating that the Attorney General
“shall take into custody any alien who is
certified” by him. Earlier immigration law
allowed for continued detention only when an
alien was a danger to the community or flight risk.
An alien may be certified if the Attorney General
“has reasonable grounds to believe” that the
alien has engaged in any one of a great number of
listed prohibited activities. The problem, of
course, is that here, just as in the An Tri
procedures, there is only limited judicial review of these certifications.
Once an alien is certified, “the Attorney General
shall maintain custody of such an alien until the
alien is removed from the United States. . . .
irrespective of any relief from removal for which
the alien may be eligible.” While Section 412
requires that an alien who has not been removed
or charged with a crime within seven days “shall
[be] release[d],” a person “whose removal is
unlikely in the reasonably foreseeable future,
may be detained for additional periods of up to
six months . . . if the release of the alien will
threaten the national security of the United
States or the safety of the community or any
person.” The Attorney General “shall review” the
certification every six months.
The result, of course, as with the An Tri
detentions, is that “[b]y the use of repeated
extensions a suspect can be detained
indefinitely” without ever having any sort of genuine due process hearing.
What we do not yet realize is that the precedents
set by the PATRIOT Act administrative detentions
of aliens not only could be expanded to include
citizens, but already have beenby the
President’s unlawful enemy combatant
designations. The concern is not that a few
innocent aliens may be indefinitely detained but
that this could lead to the indefinite
administrative detention of anyone who criticizes the government.
The crimes under the national security laws of
the Republic of Vietnam during U.S. occupation
are ominously similar to those under the alien
terrorism provisions of the PATRIOT Act. Both
sets of laws were intended to address acts that
threaten the public safety and/or national
security but neither provided for criminal
prosecution, procedural due process, or Sixth
Amendment-type protections. Both involved indefinite detentions.
National security and foreign intelligence
concepts are central to the rationale for
indefinite administrative detentions. It is these
concepts that prompt or even compel the creation
of detention programs that, by definition, must
evade constitutional and human rights
requirements. Administrative detentions are national security detentions.
Proponents of administrative detentions claim
that administrative detentions are the humane
alternative to dealing with national security and
foreign intelligence issuesthe other way being
assassination. Criminal trials are viewed as
inadequate. Thus, it is important to look at the definitions of these concepts.
Provisions of the PATRIOT Act, other than Section
412, where national security is a key concept are
those that relate to foreign intelligence. The
concept of foreign intelligence is the bridge
that has permitted national security detentions
to be written into our federal law. Where in
South Vietnam such detentions were permitted due
to insurgency, national emergency, and war fought
within that nation’s borders, now they are
permitted in the United States because of an
amorphous (congressionally undeclared) “War on Terror” fought everywhere.
U.S. officials since 9/11 have repeatedly stated
that terrorism is an utterly new animal, that we
are fighting a new kind of war, but this is
exactly what officials said about Vietnam. The
U.S. has always perceived a need for foreign
intelligence, and the two (terrorism and foreign
intelligence) have now become inextricably
intertwined in our laws. Where foreign
intelligence used to be gathered by spying
overseas (or on foreign powers and their agents
who were here in the U.S.), which was exclusively
an Executive Branch function, foreign
intelligence investigations since 1978 have been
regulated by the Foreign Intelligence
Surveillance Act, or FISA, and a special, secret
federal court called the FISA Court or FISC, that
reviews applications to spy domestically.
While FISA was enacted in order to curb
indiscriminate and unreviewable Executive Branch
surveillance, the law has led gradually to the
very dangerous mixing of criminal law (which
provides for the usual constitutional
protections) and foreign intelligence lawi.e.
FISA (which does not). It has also led to the
interchangeability of the terms foreign
intelligence investigation, terrorism
investigation, and national security
investigation. In other words, anything that can
be linked to a terrorism investigation is a
national security investigation, which naturally
involves foreign intelligence. A national
security investigation may or may not involve
terrorism, but will likely involve application of FISA.
Just about anything can be linked to national
security. And once linked, the lowered
constitutional standards of FISA kick in. This
opens the door for almost anybody to be
investigated and, when considered alongside the
detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions
are intended to permit detentions of only aliens
who are thought to be national security risks, it
is clear that these provisions set a precedent
for government detentions of innocent dissenting
citizens and can be extended to those who merely
disagree with the government. Indeed, with police
actions and prosecutions against grass roots
activists increasing, some might argue it is already happening.
A closer look at the definitions of foreign
intelligence and national security reveals some
ominous threads. Oddly, national security is not
defined in FISA (which is, of course, the law
that most deals with issues of national
security). Rather, it is defined in the
immigration laws relating to excludable and
removable aliens. National security is there
defined as “the national defense, foreign
relations, or economic interests of the United
States.” Something as routine and legally
permissible as a workers strike at a Coca Cola
plant in Colombia could be construed as a threat under this definition.
Although national security is not defined in
FISA, “threats to national security” are set
forth in FISA in provisions which establish the
basis for coordination between intelligence and
law enforcement. These provisions use the
identical language as that used in defining
foreign intelligence information, discussed in the next paragraph.
Foreign intelligence information (and therefore a
“threat to national security”) is:
[I]nformation that relates to, and if concerning
a United States person is necessary to, the
ability of the United States to protect
against(A) actual or potential attack or other
grave hostile acts of a foreign power or an agent
of a foreign power; (B) sabotage or international
terrorism by a foreign power or an agent of a
foreign power; or (C) clandestine intelligence
activities by an intelligence service or network
of a foreign power or by an agent of a foreign power.
This type of foreign intelligence information is
sometimes called “protective” or
“counterintelligence” information. It requires
the type of activity we usually think of spies engaging in.
A second definition of foreign intelligence
information in FISA includes information relevant
or necessary “to the national defense or the
security of the United States” or “the conduct of
the foreign affairs of the United States.”
According to the FISA Review Court: “This
definition generally involves information
referred to as ‘affirmative’ or ‘positive’
foreign intelligence information rather than the
‘protective’ or ‘counterintelligence’ information
. . . .” This type of intelligence is a much
vaguer, more expansive type of information. Just
about anything could be relevant to the national
defense or conduct of foreign affairs. Indeed, by
this definition, the Phoenix Program was a
foreign intelligence operation, designed
ultimately to identify the managers of the insurgency in North Vietnam.
With either type of intelligence, it is important
to remember that such information is gathered for
the purpose of protecting the interests of the
nation, not for bringing criminal prosecutions.
This distinction is important when you consider
that intelligence information is not protected by
the Fourth Amendment probable cause requirement.
In other words, those gathering information under
a foreign intelligence investigation do not have
to provide a judge with evidence of probable
cause of criminal activity in order to obtain a
warrant, although information obtained via a FISA
warrant can nonetheless be used in a criminal prosecution.
The FISA Review Court, convened for the first
time in history in 2002 to review a FISA Court
decision on the interpretation of the PATRIOT Act
provision relating to the proper standard for
FISA warrants, noted that certain FISA
definitions do require criminal activity. While
FISA does not require probable cause of criminal
activity, it does require probable cause that the
target is a foreign power or an agent of a
foreign power. Thus, the FISA Review Court noted:
The definition of an agent of a foreign power, if
it pertains to a U.S. person . . . is closely
tied to criminal activity. The term includes any
person who “knowingly engages in clandestine
intelligence gathering activities . . . which
activities involve or may involve a violation of
the criminal statutes of the United States,” or
“knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor [sic].”
While the Court draws much of its subsequent
analysis from its observation that foreign
intelligence warrants do, after all, relate to
criminal activity, it nonetheless notes that:
“The term ‘foreign power,’ . . . is not defined
[in FISA] solely in terms of criminal activity.
For example, although the term includes a group
engaged in international terrorism, which would
involve criminal activity, it also includes any
foreign government.” Thus, even if criminal
activity does underlie some FISA warrants, FISA
does not require proof of such activity (rather
it assumes it), and the predetermined underlying
criminal activity inherent in the definition is
no justification for allowing a lack of probable
cause of criminal activity standard in cases that
eventually become criminal prosecutions. Exactly
the opposite, one would think.
Astonishingly, the FISA Review Court itself
acknowledged that the constitutional question of
whether FISA strikes the right balance “has no
definitive jurisprudential answer” and that “to
the extent a FISA order comes close to meeting
[the requirements of federal criminal law], that
certainly bears on its reasonableness under the
Fourth Amendment.” In any case, they declined to
decide the issue. The Court concluded that “the
procedures and government showings required under
FISA, if they do not meet the minimum Fourth
Amendment warrant standards, certainly come close.”
Military Commissions and Unlawful Enemy Combatants
Bush cited Congress’ September 18, 2001,
Authorization for Use of Military Force (“AUMF”)
and his authority as Commander-in-Chief to
justify his Military Order of November 13, 2001.
The AUMF authorized the President to “use all
necessary and appropriate force against those
nations, organizations, or persons he determines
planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons,
in order to prevent any future acts of
international terrorism against the United States
by such nations, organizations, or persons.”
It took the Department of Defense four months to
establish procedures for military tribunals. On
March 21, 2002, it issued Military Commission
Order No. 1 (“MCO”) providing “Procedures for
Trials by Military Commissions of Certain
Non-United States Citizens in the War Against Terrorism.”
However, in the meantime hundreds of men had
already been held in indefinite detention at
Guantanamo, Abu Ghraib and other locations, and,
as has become increasingly clear from news
reports, untold numbers had already been tortured
and in some cases murdered at the hands of their captors.
In any case, certification under the Military
Order did not work well enough. Although it
provided for written certification of al Qaida
terrorists, by the time the MCO was issued,
Defense Department officials “indicated they
would hold the Guantanamo prisoners indefinitely
and on different legal grounds” than the Military
Order provided for“as ‘enemy combatants’ in a war against the United States.”
The reason was apparently that “intelligence
officers began reporting back to the Pentagon
that they did not have enough evidence on most
prisoners to even complete the [certification]
forms” required by the Military Order. Thus,
where there was not enough evidence to detain
under the Presidential Military Order
certification process or for that matter to
detain on pending criminal charges, new,
different legal grounds, based solely on the
President’s determinationthe unlawful enemy
combatant designationswere simply substituted.
The enemy combatant designations have been
applied to both non-citizen detainees at
Guantanamo and to several American citizens being
detained at military brigs in the United States.
The Administration argued that enemy combatants
had no due process or habeas corpus rights
whatsoever. The Supreme Court disagreed, handing
down its landmark decision in Hamdi v. Rumsfeld,
in which the Court ruled that a U.S. citizen
enemy combatant captured on a battlefield abroad
in combat against U.S. forces was entitled to
have his status determined by a neutral decision
maker. The same day the Hamdi decision was handed
down, the Court also decided in Rasul v. Bush
that Guantanamo detainees also had some due
process rights and a habeas corpus right to file
in any U.S. federal court. The Rasul decision led
to the Defense Department establishing the
“Combatant Status Review Tribunals” (“CSRT”),
which some feel fail to satisfy even the minimum
standards of due process required either by Rasul or Hamdi.
Article 5 of the Geneva Convention Relative to
the Treatment of Prisoners of War (also called
the Third Geneva Convention and often abbreviated
“GPW”), states: “Should any doubt arise as to
whether persons, having committed a belligerent
act and having fallen into the hands of the
enemy,” are POW’s, “such persons shall enjoy the
protection of the present Convention until such
time as their status has been determined by a competent tribunal.”
Until after the Supreme Court decision in Rasul,
President Bush refused to accord detainees the
protections of POW status or even to afford them
any status hearing at all. Similarly, in Vietnam,
officials declared that Geneva Common Article 3,
common to all four of the Geneva Conventions,
applied “only to sentencing for crimes and [did]
not prohibit a state from interning civilians or
subjecting them to emergency detention when such
measures are necessary for the security or safety of the state.”
Common Article 3 prohibits “the passing of
sentences and the carrying out of executions
without previous judgment pronounced by a
regularly constituted court, affording all the
judicial guarantees which are recognized as
indispensable by civilized peoples.” Article 3
has, according to one commentator, “been
described as ‘a convention within a convention’
to provide a general formula covering respect for
intrinsic human values that would always be in
force, without regard to the characterization the
parties to a conflict might give it.”
However, as with the Bush Administration, so
during Vietnam, “the United States and South
Vietnamese Governments . . . agreed that
humanitarian treatment must be accorded to all
persons,” and ultimately, when its hand was
forced, the U.S. acknowledged that there were
“aspects of the ‘an tri’ procedure [that]
raise[d] some problems which give us concern.”
Officials testified, however, that the procedures
were being improved to “accord with fundamental
concepts of due process, and to improve the conditions of internment.”
By 1971 the United States Military Assistance
Command in Vietnam (“MACV”) had instituted
screening procedures to precede the detention
proceedings. Like the screening procedures in use
now at Guantanamo, it is doubtful whether these
procedures satisfied Geneva’s requirements.
In 1966, MACV first issued a directive pertaining
to the determination of POW status. Under this
directive, identifiable North Vietnamese Army and
Vietcong fighters were accorded POW status upon
capture. For all others, a screening procedure
was employed. So-called “Combined Tactical
Screening Centers” were “activated.” Screenings
were to be conducted at the “lowest echelon of command practical.”
According to Congressional Research Service
attorney Jennifer Elsea, “the first
implementation of written procedures for . . .
tribunals” under Article 5 of the Third Geneva
Convention since Geneva’s signing in 1949, was
set forth in this 1966 MACV directive. However,
it is clear that, in fact, the directive grew out
of official intent to evade Geneva’s requirements
while satisfying Congress that the U.S. was
trying to comply “despite the anomalies created
by attempting to apply rules essentially designed
for a World War II situation to one involving a
political, subversive infrastructure.”
All detainees were to be classified as either
prisoners of war or non-prisoners of war.
Non-POW’s were either civil defendants,
returnees, or innocent civilians. Returnees were
persons who, regardless of past membership in any
combat force, voluntarily submitted to the
“control” of the Government of Vietnam. Civil
defendants were not entitled to POW status but
were subject to trial for offenses against
Vietnamese laws. These included spies, saboteurs, and terrorists.
Detainees were defined as “[p]ersons who have
been detained but whose final status has not yet
been determined.” This rule, as Valentine’s book
reveals, did not describe reality, as persons who
might meet any of the classifications, including
POWs, could be and routinely were detained
indefinitely and tortured during that detention.
The directive declared that “[s]uch persons are
entitled to humane treatment in accordance with
the provisions of the Geneva Conventions” as if
the declaration brought the U.S. fully into
compliance with Geneva and made further
compliance unnecessary. Those who were not
regular North Vietnamese or Vietcong soldiersin
other words, “irregulars”were accorded POW
status, if caught in combat and not engaging in
terrorism, sabotage, or spying. Such irregulars
included: guerrillas, self-defense forces, and secret self-defense forces.
Although the MACV directive does not so state,
evidently those who were not obviously POWs were
given a status determination hearing. According
to Elsea, “those not treated as POWs were treated
as civil defendants, and were accorded the
substantive and procedural protections” of
Geneva. Again, however, we know that many of
these civilian defendants languished interminably in the An Tri prisons.
In determining status, “[e]xploitation of human
sources, documents, materiel [sic], and other
intelligence requirements incident to the
effective screening and classification of
detainees will normally be accomplished by
intelligence personnel of the participating
elements” and “[m]aximum use must be made of
interrogators and interpreters to conduct initial
screening and segregation at the lowest possible level.”
These threshold procedures appear to resemble
those used by the Bush Administration since
Rasul. The MACV directive notes that the
“detaining unit” was to “insure that the proper
documentation [was] initiated and maintained on
every individual” and that “data reflect
circumstances of capture and whether documents
o[r] weapons were found on the detainee.” The
hearings were clearly one-sided, weighted in
favor of detention, and assumed accuracy of
intelligence and the detaining unit’s
documentation. No provision appears to have been
made at these screening hearings for the detainee
to present evidence in his favor, for legal
representation, proper standards of proof, or
other traditional due process protections.
Combatants in War on Terror
Guantanamo screening procedures came about, like
those in Vietnam, only after public clamor and
two Supreme Court decisions: Hamdi and Rasul.
But, despite these two rulings, government
attorneys continued to argue that although
detainees may have a right to some due process in
challenging their detentions, all the process
that was due was “a right to appear before a
panel set up entirely within the military, run by
officers, under rules that allow the detainee no
lawyer and no assurance of access to all the
facts about their capture and detention.” The
combatant status review tribunals (“CSRTs”) were
purportedly erected to satisfy the Supreme
Court’s dictates, but Amnesty International
expressed its opinion that “the CSRT process may
have been devised as an attempt by the government
to narrow the scope of any judicial review.”
Senator Patrick Leahy noted that the
Administration established the CSRTs “only after
being rebuked by the Supreme Court in Rasul v.
Bush,” and the procedures only “affirmed the
‘enemy combatant’ status of the Guantanamo
detainees based on secret evidence to which the
detainees were denied access, raising serious
questions about the fairness of the process.”
.
Although news reports revealed a massive lack of
adequate procedures and guidance for
interrogations at Abu Ghraib, little has been
reported about the screening, detention, or trial
procedures. Some of the procedures used in the
Iraq war theater are detailed in documents
obtained from the Department of Defense by the
American Civil Liberties Union via a Freedom of Information Act request.
According to one undated (ca. 2003-04) document
titled “Detainee Process,” if a detainee was
determined (by what method, the documents do not
say) to have high “intelligence value,” he would
immediately be transferred to the “Division
Central Collection Point” in Tikrit, Iraq. If he
was determined to have no intelligence value
“from and/or through interrogations,” he would be
“tried for the violations listed,” apparently at
the regional “collection point.” Proceedings were
conducted “based on a summary courts martial
model.” If the detainee had no intelligence value
and was not found to have committed any other
violations, he was released. Reasons for delay in
a detainees transfer or release was generally
missing or incomplete information.
A flow chart for “Detainee Processing” at Tikrit,
Iraq, lists the steps to be followed: individual
detained, capturing unit complete paperwork,
detainee arrives at one of the regional
collection point detention facilities, detainee
is screened “by CI,” packet is completed. If a
detainee had “intel value” or otherwise warranted
further detention, he was sent to the Division
Central Collection Point in Tikrit.
At Tikrit, detainee screening was conducted only
at “three designated interrogation tents.” One
side was to be kept open at all times unless
there was a military police officer inside.
One officer explained to superiors that detainees
are most susceptible during the first few hours after capture:
The prisoners are captured by Soldiers, taken
from their familiar surroundings, blindfolded and
put into a truck and brought to this place (Abu
Ghraib); and then they are pushed down a hall
with guards barking orders and thrown into a
cell, naked; and that not knowing what was going
to happen or what the guards might do caused them extreme fear.
Detainee categories in the Iraq theatre are very
similar to those in Vietnam. Category I is high
level enemy prisoners of war (“EPWs”), detained
persons, civilian internees, including “black
list individuals,” suspected war criminals, and
“violators of UN Resolutions whose broad or
specific knowledge makes it necessary for them to
be questioned without delay by specially
qualified interrogators or debriefers.” Category
IA are mid-level EPWs, detained persons, civilian internees, including:
[G]rey list individuals whose broad or specific
knowledge of regional and national level Ba’ath
Party and Fedayeen activities, leadership and
cell structure, identities of members,
recruiting, intelligence capabilities, financing,
training, planning, communications and/or
locations, makes it necessary for them to be
questioned without delay by operationally focused
interrogators. Also includes persons suspected of
affiliation with terrorist organizations, foreign
intelligence services and foreign fighters.
Both Category A and A1 detainees are transferred
immediately to the Task Force Central Collection
Point in Tikrit. Category A1 detainees are
processed and thereafter transferred to the
Coalition Interrogation Facility at Baghdad Airport.
According to one army investigation: “At first,
at Abu Ghraib and elsewhere in Iraq, the handling
of detainees, appropriately documenting their
capture, and identifying and accounting for them,
were all dysfunctional processes, using little or
no automation tools.” The senior investigating
officer, Anthony Jones, noted, “When policies,
SOPs [standard operating procedures], or doctrine
were available, Soldiers [sic] were
inconsistently following them. In addition, in
some units, training on standard procedures or
mission tasks was inadequate.” However, Jones
added, “In my assessment, I do not believe that
multiple policies resulted in the violent or
sexual abuses discovered at Abu Ghraib. However,
confusion over policies contributed to some of
the non-violent and non-sexual abuses.”
Finally, Jones pointed out several additional
pertinent elements of the Abu Ghraib detention
situation. First were the detainees that “were
accepted from other agencies and services without
proper in-processing, accountability, and
documentation,” who were referred to as “ghost
detainees.” Second, Jones remarked about the
“systemic lack of accountability for interrogator
actions and detainees [that] plagued detainee
operations in Abu Ghraib.” Finally, Jones noted:
Although the FBI, JTF-121, Criminal Investigative
Task Force, [Iraq Survey Group], and the [Central
Intelligence Agency] (CIA) were all present at
Abu Ghraib, the acronym “Other Government Agency”
(OGA) referred almost exclusively to the CIA. CIA
detention and interrogation practices led to a
loss of accountability, abuse, reduced
interagency cooperation, and an unhealthy
mystique that further poisoned the atmosphere at Abu Ghraib.
Most importantly, “local CIA officers convinced
military leaders that they should be allowed to
operate outside the established local rules and procedures.”
It is doubtful whether CSRTs have been applied to
citizen detainees, but as of July 2005, they were
completed at Guantanamo for all detainees.
The CSRTs are administrative rather than
adversarial, but each detainee may present
“‘reasonably available’ evidence and witnesses to
a panel of three commissioned officers to try to
demonstrate that the detainee does not meet the criteria to be designated.”
“CSRT procedures are modeled on the procedures of
Army Regulation (AR) 190-8.” The AR divides
captives into four classes: enemy prisoners of
war, retained personnel (chaplains, medical
personnel, Red Cross), civilian internees, and
other detainees. Under AR, the preliminary
determination of status is made on the
battlefield; those made under CSRT procedures clearly are not.
AR provides that the reviewing panel decides by a
majority vote on the preponderance of evidence
whether an individual should be detained.
According to Human Rights First, the “tribunals
that will conduct detainees’ status hearings are
not neutral” and fail to satisfy the Supreme
Court’s rulings in either Rasul or Hamdi. Human Rights First notes:
While tribunal officers are to have had no
previous connection with the apprehension,
detention, or interrogation of the detainees,
this condition is no guarantee of neutrality. A
finding in favor of the detainee would require
the officer to challenge determinations made by
his or her entire chain of command, including the
President, who, in an “order” issued February 7,
2002, “determine[d] that the Taliban detainees
are unlawful combatants and, therefore, do not
qualify as prisoners of war . . . [and likewise]
note[d] that . . . al-Qaida detainees also do not
qualify as prisoner[s] of war.” Moreover, the
tribunals may only affirm the original “enemy
combatant” designation, or determination, and
they do not have the option to declare a detainee
a “lawful combatant/prisoner of war.”
Human Rights First claims that the status
hearings “do not even measure up to the military
regulation they claim to mirror,” which
established, by contrast, “no institutional
interest . . . in the outcome of any particular
individual’s hearing” even in battlefield hearings.
The CSRTs are not bound by rules of evidence that
would apply in federal court, or even in a court
martial. The government’s evidence is presumed to
be “genuine and accurate.” The government is
required to present all of its relevant evidence.
The detainee’s “personal representative,” who is
assigned to him, may view classified information
but does not act as legal counsel, since the
representative need not possess any professional
training and communications are not
confidentiala fact of which detainees are apparently not informed.
Human Rights First points out that the fact that
if status hearings had been “held at the time of
capture [and] determined that an individual was a
noncombatant, his deportation to Guantanamo . . .
would have been a grave breach of the [Geneva] Convention.”
All in all, the War on Terror screening
procedures share many, if not most, of the
features of the Vietnam screenings; these can be
most easily summed up as violating Articles 3 and
4 of the Third Geneva Convention. The rationales
for the structure of these screening procedures
also seems to be similar: that fighting a new and
vicious enemy who does not follow the laws of war
himself excuses us from following those laws
ourselves, in particular the so-called “Geneva
law” that emphasizes human rights and responsibilities.
An Tri Tribunal Procedures
A contemporary Department of State handbook of
Vietnamese national security laws sets forth the
An Tri procedures in detail. The An Tri
detention system permitted the rounding up of
“Civilian Security Suspects”those who were
thought to be a “[d]anger to National
Security”on the basis of nothing more than
“simply . . . the word of an anonymous informer.”
The U.S. puppet Vietnamese “Security Committee”
could “take action on a case even though a
criminal act cannot be proven.” Members of
“infrastructure, various associations, and
political cadre, draft evaders, deserters, and
those suspected of having violated the laws of
the [Republic of Vietnam] will normally be
classified as civil defendants and not [prisoners
of war].” The procedures for administrative
detention were “far less exacting and technical
than those of the [regular Vietnamese] courts.”
Similar to designated war on terror “unlawful
enemy combatant” detainees, “Civilian Security
Suspects” could be detained initially for a
maximum period of two years, with the potential
of renewed periods upon review. Proceedings were
closed to the public; the detainee had no right
to counsel or right to appear personally at his
hearing. Civilian security offenders were tried
by Special Courts, Security Committees or
Military Courts, “in accordance with the
emergency Decrees and Decree-Laws which define
security offenses and specific the forum.”
The rules of evidence were “relatively lenient,”
although an accused, in theory if not in
practice, could “rebut such evidence and . . .
demand that witnesses whose statements are in the
dossier appear personally in court.” Evidence
had apparently merely to be “sufficient” to
“support the arrest, custody, trial and
conviction of the suspect,” but classified
information could be “[brought] to the attention
of the court . . . [but] not be incorporated in
the official record of the case.” Confessions
were accepted in evidence, “signed by the
accused,” and “a substantial number of
convictions” were “obtained through confessions.”
The procedures in a fourth venue, Military Field
Courtswhose “operation . . . received
considerable public attention due to the
sensational nature of some of the [Vietcong]
cases tried there and the gravity of the
penalties involved”were “considerably simplified
and abbreviated, particularly as regards the
pre-trial investigations.” The decisions of such
courts were final, without any right of
appeal. The compiler of these statistics noted
that the “laws and procedures for dealing with
security offenders are far from perfect and
eventually must be replaced” but “for the
present, the emphasis must continue to be on winning the war.”
The Bush Military Commission Procedures
While the Military Order and the Military
Commissions Order provide for trials of enemy
combatants, nowhere do these orders require that
every detainee be tried, and, in fact, as we have
seen, the Administration has made it clear that
it does not intend to try most detainees,
emphasizing that the purpose of these detentions
is to keep people off the battlefield. The
procedures established for military tribunals,
however, presently contain the greatest degree of
procedure most detainees will be granted. They
also contain a similar mishmash of civil and war
“crimes” as the An Tri trial procedures
The lower standards of proof, expanded secrecy
provisions, denial of judicial review, and the
lack of independence from the executive branch go
hand-in-hand with and form part of the
infrastructure for administrative detentions.
The Military Order, in anticipation of the MCO,
stipulates a “full and fair trial” but, as the
Congressional Research Service notes, it
“contains few specific safeguards that appear to
address the issue of impartiality.” The military
commission panel sits “as triers of both fact and
law.” Evidence may be admitted if, in the opinion
of the presiding officer, it has “probative value to a reasonable person.”
An individual subject to the order may be tried
only by the commission and “shall not be
privileged to seek any remedy or maintain any
proceeding, directly or indirectly, or to have
any such remedy or proceeding sought on the
individual’s behalf, in any court of the United
States, any court of any foreign nation, or any
international tribunal.” Jennifer Elsea notes
that “[t]he President appears to have complete
control over the proceedings.” She continues:
He or his designee decide which charges to press,
select the members of the panel, the prosecution
and the defense counsel, select the members of
the review panel, and approve and implement the
final outcome. The procedural rules are entirely
under the control of the President or his
designees, who write them, interpret them,
enforce them, and may amend them at any time.
Procedural safeguards include the right to be
informed of charges sufficiently in advance of
trial to prepare for defense, presumption of
innocence, guilt beyond a reasonable doubt, open
hearings (with exceptions), right to counsel
(with restrictions, including monitoring of
communications and supervision), and right to
discovery to the extent necessary and reasonably
available, subject to secrecy determinations.
There appear to be no exclusionary rules for
admissibility of evidence and no authentication
requirements for depositions. The main concern
appears to be the need for secrecy rather than fairness of process.
According to Judge Evan J. Wallach, Bush’s
Military Order “and subsequent statements by the
President, Vice President, Attorney General,
Secretary of Defense, and the White House Counsel
made it clear that the tribunals were intended to
follow procedural and evidentiary rules similar
to those used to try spies and war criminals
during and after the Second World War,” which
were applied in World War Two and in the
post-war tribunals [were] repeatedly used to
admit evidence of a quality or obtained in a
manner which would make it inadmissible under the
rules of evidence in both courts of the United
States or courts martial conducted by the armed forces of the United States.
Wallach points out further that: “None of the
screening processes applied to the Guantanamo
detainees, either pre-shipment from Afghanistan,
during incarceration, or following the Supreme
Court’s mandate in Hamdi, meets the requisites of
Article 5” of the Third Geneva Convention relating to prisoners of war.
Indeed, the MCO procedures were considered
inadequate by many, including human rights
organizations and even by some of the military
officers assigned to prosecute Guantanamo
suspects. Three retired military officers, each
formerly either a Judge Advocate General or
senior legal advisor for a branch of the United
States military, jointly filed an amicus curiae
brief in the consolidated case of Rasul v. Bush,
stating: “The government should not be permitted,
through Executive fiat, to imprison persons
indefinitely when no charges have been brought
against them and the prisoners are barred from
all access to courts and other tribunals to determine their status.”
Several military defense lawyers filed challenges
to the impartiality of the commission judges,
three of whom were subsequently removed. The
lawyers also filed in federal court challenging
the military tribunals. The suit, Hamdan v.
Rumsfeld, resulted in a November 2004 District of
Columbia Circuit Court decision declaring
that unless and until the rules for Military
Commissions (Department of Defense Military
Commission Order No. 1) are amended so that they
are consistent with and not contrary to Uniform
Code of Military Justice Article 39, 10 U.S.C.
839, petitioner may not be tried by Military
Commission for the offenses with which he is
charged [and] unless and until a competent
tribunal determines that petitioner is not
entitled to the protections afforded
prisoners-of-war under Article 4 of the Geneva
Convention Relative to the Treatment of Prisoners
of War of August 12, 1949, he may not be tried by
Military Commission for the offenses with which he is charged.
However, on July 15, 2005, the Court of Appeals
for the D.C. Circuit overturned the D.C. District
Court decision, ruling that Hamdan has no
individual right to assert a Geneva violation and
that the CSRT, which determined that Hamdan is an
enemy combatant subject to indefinite detention,
satisfies Geneva’s hearing requirement. Hamdan
has appealed to the Supreme Court. Neil Katyal, Hamdan’s attorney, writes:
The court of appeals, by rejecting longstanding
constitutional, international law, and statutory
constraints on military commissions, has given
the President that power in tribunals that impose
life imprisonment and death. Its decision vests
the President with the ability to circumvent the
federal courts and time-tested limits on the Executive.
He notes that: “This case challenges (1) a
commission without explicit Congressional
authorization, (2) in a place far removed from
hostilities, (3) to try an offense unknown to the
laws of war, (4) under procedures that flout
basic tenets of military justice, (5) against a
civilian who contests his unlawful combatancy.”
And: “The essence of the court of appeals’
contrary position is that while Petitioner has no
rights under the Constitution, treaties, common
law, and statutes, he is subject to the penalties and pains of each.”
On a somewhat analogous question, on October 5,
2005, the Senate voted 90-9 in favor of an
anti-torture statute that would require all
interrogations to comply with the Uniform Code of
Military Justice. The D.C. Circuit Court of
Appeals did not require that the Military
Tribunals adhere to the Uniform Code, as the D.C.
Circuit Court itself had, but Congress defied the
White House’s threatened veto to pass the
anti-torture law that requires such adherence.
The Bush detention scheme, like An-Tri, is
designed to screen and detain without a regular
trial those who are merely suspected of being
dangerous to national security. Again like
An-Tri, it was set up with the primary purpose of
gathering intelligence, or as White House Counsel
Alberto Gonzales said, with “a high premium on .
. . the ability to quickly obtain information from captured terrorists.”
The Law of War & Determination of Detainee Status
Where the U.S. eventually acknowledged residual
responsibility under the Geneva Conventions for
the Phoenix detentions in Vietnam (originally
having denied all responsibility, saying it was
not in charge), the Bush Administration, while
stating it would follow the spirit of Geneva,
from the start claimed that Geneva does not apply
to most of the detainees, and in any case, that
no tribunal other than its own executive decision
was needed to determine a detainee’s status.
Bush refused to acknowledge the application of
Geneva to terrorist suspects, but White House
counsel Alberto Gonzales advised him that “even
if [the Geneva Convention] is not applicable, we
can still bring war crimes charges against anyone
who mistreats U.S. personnel.” This sort of
incongruity calls for judicial and congressional scrutiny.
There are two branches of the laws of war: the
older one is sometimes called the “Hague law,”
after the Hague Conventions of 1899 and 1907,
which prescribes the rules of engagement during
combat and is based on the key principles of
military necessity and proportionality, and the
newer “Geneva law,” after the Geneva Conventions
of 1929 and 1949, which emphasizes human rights
and responsibilities, including the humane treatment of prisoners.
The law of war is based on the idea of
reciprocityyou treat your enemies the way you
want them to treat you. Derogation from the rules
by one party, however, does not excuse breaches
by another. “Were this not the case, any
deviation from the letter of the law could be
invoked to justify wholesale abandonment of the
law of war, causing the conflict to degenerate
into the kind of barbarity the law of war aims to mitigate.”
Further, parties to an armed conflict retain the
same rights and obligations without regard to
whether they initiated the hostilities or whether
their conduct is justifiable under international law.
Thus, President Bush could not excuse the United
States from honoring (or applying) the Geneva
Conventions or other international treaties
applicable in the war on terror on the grounds
that the 9/11 attacks were unprovoked or violated the laws of war.
Intentional Violations of the Geneva Conventions
One of the darkest truths about both the An Tri
detentions and the current administrative
detentions of unlawful enemy combatants is that
not only did both violate international and
domestic laws, but instead that in both cases the
U.S. government officials clearly did so intentionally.
With respect to Bush Administration policies, two
respected law professors, both of whom served in
the military, independently concluded that the
January 2002 memo by White House Counsel Alberto
R. Gonzales and subsequent presidential decisions
and authorizations are “evidence of the
initiation of a Common Plan to violate the 1949 Geneva Conventions.”
The Phoenix Program was from the start an
unlawful program. It began as a CIA covert
operation, ultimately evolving into a program of
detentions of dangerous persons, purportedly run
by the Vietnamese, but in fact always managed by
Americans. Eventually, those in chargean
“old-boy network, a group of guys at highest
level . . . who thought they were Lawrence of
Arabia”were required to answer to Congress and
conform the program more closely to Geneva
requirements. But there was never a full
accounting of American transgressions against the Vietnamese.
Similarly, Bush administration rationales and
justifications for violating established,
time-tested international protections are the
same as those used by American officials during
Vietnam. Indeed, what one Vietnamese scholar
presciently wrote in 1982 could be echoed today:
“American politicians have not yet changed their
policy . . . . Almost the same people [are
applying] the same policy with the same principles and the same spirit.”
As noted earlier, American officials in Vietnam
decided that Geneva did not apply to security
detainees. Their argument that either the
individuals were not “protected persons” under
Article 4 of the Fourth Geneva Convention (for
protection of civilians) or that Article 3
(common to all the four Geneva Conventions,
mandating humanitarian treatment to all persons,
even if not protected persons, and forbidding
“‘the passing of sentences and the carrying out
of executions without previous judgment
pronounced by a regularly constituted court,
affording all the judicial guarantees which are
recognized as indispensable by civilized
peoples’”) did not apply to those who were not
charged with a crime and did “not prohibit a
state from interning civilians or subjecting them
to emergency detention when such measures are
necessary for the security or safety of the
state,” is ominously similar to the
reasoning applied by the Bush Administration.
Based on the argument that the President has the
constitutional authority to suspend treaties in
certain circumstances or to interpret them to
mean that they do not apply to certain persons,
President Bush initially decreed that the Geneva
Conventions did not apply to al Qaeda (because
they were not party to the Conventions) or the
Taliban (because they were unlawful enemy
combatants not qualifying as prisoners of war).
Judge Wallach notes, “it [is] clear that by the
end of January [2002], at least, consideration
was being given to conduct which might violate
[the Third Geneva Convention’s] strictures
regarding the detention and interrogation of
prisoners of war.” Former White House Counsel
Alberto Gonzales now Attorney General, with all
the powers that position entailsadvised the
President on January 25, 2002 that if the
President determined that Geneva did not apply,
his decision would render “obsolete Geneva’s
strict limitations on questioning of enemy
prisoners,” thus “eliminat[ing] any argument
regarding the need for case-by-case
determinations of POW status,” and insulating the
Administration against domestic prosecution for war crimes.
Wallach points out: “Any such approach is
incompatible with the core concepts of rule of
law, coequal branches of government and
separation of powers,” “would fly in the face of
every concept of rule of law and regulation of
armed conflict developed over the past two
hundred years . . . [and] would also be a direct
and criminal violation of the standards for
minimal conflict in war time developed at
Nuremburg.” Wallach also notes, these violations
could constitute grave breaches of Geneva, which
would constitute a violation of the War Crimes Act of 1996.
The An-Tri detentions arose out of a desperate
climate. In Vietnam, American involvement began
in the early 1950s, with American soldiers
fighting alongside the French. By 1952, American
advisers began training Vietnamese units. By
1954, the United States had installed Ngo Dinh
Diem, and the CIA was operating a brutal
psychological warfare program which later evolved
and was incorporated into Phoenix. Arrests and
executions of Vietnamese Communists began in 1956
with the notorious Denunciation campaign under
Diem. “The campaign was managed by security
committees, which were chaired by CIA advised
security officers who had authority to arrest,
confiscate land from, and summarily execute Communists.”
A State of National Emergency was declared by the
Vietnamese puppet government in August 1964 and a
State of War in June 1965. A 1972 memo by Ray A.
Meyer, an American legal adviser in Vietnam,
making recommendations for An-Tri reforms, noted:
“It must be recognized that, in Vietnam . . .
preventive detention is a substitute for killing people.”
But even when “reforms” of the An-Tri system were
considered, the U.S. embassy decided to defer
making them because of “intractable CIA internal
security considerations . . .” and the system was
then permanently solidified into “a system of
indeterminate terms of detention.” Although many
of Meyer’s recommendations (hearings open to the
public, gradual phasing out of An-Tri), were not
adopted, the indefinite detention program was retained.
These facts illustrate the original, albeit ex
post facto, rationale for the indefinite
detentions: an alternative to battlefield
killing, but it was always a means of gaining and
exploiting intelligence. This rationale has now
been extended to the global “War on Terror,”
justifying indefinite detentions of any terrorist
suspect, without trial, without any sort of due
process or habeas corpus protections, and, prior
to the Supreme Court decision in Hamdi, without
even a legitimate status determination.
The dilemma now, as during Vietnam, is genuine.
How to identify and what to do with persons who
plan to sabotage and murder civilians? Is this a
war or is it an insurgency? What do you do when
civilians may be the enemy? Outright
assassination of masses of suspect civilians is
not only morally repugnant and wrong, but against
the laws of war. But, then, what do you do when
the insurgency is civilian based? The easy answer
is: you “administratively” (but not quite legally) detain.
But indefinite administrative detentions are not
the answer, since the reader may recall that the
Phoenix Program was not only about detentionsand
this is the real crux of the problem with
administrative detention programsPhoenix was in
fact originally an assassination program, so that
the culture of what came to be known as guerilla
or “unconventional warfare,” bled into the
detention program, leading to egregious abuses,
torture and killing of detainees, exactly what
has now been discovered in our treatment of
prisoners at Abu Ghraib and other combatant detention centers.
In both cases the justification was identical:
these are dangerous terrorists who want to kill
us; therefore, the humane alternative to killing
them is to indefinitely detain them. The
justification makes sense until one realizes that
without an adequate screening process, there is
no way to tell who is and who is not a dangerous
terrorist. American governments and presidents
have relied for centuries on intelligence to make
such decisions – and that is the underlying basis
for making such determinations up to now: i.e.,
that the President has the authority to determine
who is and who is not a dangerous terrorist
because the President has access to intelligence.
However, unquestioning reliance on the President
has throughout history been repeatedly shown to
have been misplaced. Intelligence is often based
on hearsay, innuendo, and rumor. It is therefore
problematic to rely exclusively on intelligence
as the means of determining who is dangerous and who is not.
How Did We Get Here?
Although Vietnam may be and often is seen as a
shameful episode in our history, it is clear that
we are now repeating that history. Yale Law
Professor Harold H. Koh wrote in 1990 about the Iran-Contra Affair:
“If the Iran-contra committees had looked past
Watergate to the Vietnam era, they would have
seen that the Iran-contra affair was only the tip
of a much larger iceberg that crystallized during
the Vietnam War. All of the
congressional-executive struggles that surrounded
the affair merely replicated battles that
transpired during that earlier period. That
history should have repeated itself across so
many spheres of foreign affairs, even after
Congress has passed so many statutes to avoid
repetition of the Vietnam-era evasions, suggests
that the Iran-contra affair exposed systemic,
rather than localized, problems in the American foreign-policy process.”
According to Koh, executive seizure of the
initiative in foreign affairs can be said to
arise from the fact that under our Constitution,
the president may more easily do so than may
Congress. Koh notes that, beginning with
President Franklin Roosevelt’s initiation of
“extrovert” foreign policy, “[a]n entire
generation of Americans grew up and came to power
believing in the wisdom of the muscular
presidential leadership of foreign policy.”
“Yet,” Koh notes, “Vietnam caused an entire
generation to rethink its attitude toward foreign
policy. National elites became less willing to
intervene to defend other nations and to bear the
costs of world leadership.” “Why, then, have
presidential initiatives not only continued, but
appeared to accelerate, during the post-Vietnam
era?” Koh believes that “America’s declining role
as world hegemony has forced changes in the
postwar structure of international institutions,
which have in turn stimulated further presidential initiatives.”
A shift has also taken place in the public mind.
“The rise of new and unanticipated problems not
subject to the control of any nation-state, such
as global terrorism and the debt crisis, have
increasingly forced the United States into a
reactive international posture. Given the
president’s superior institutional capacity to
initiate governmental action, the burden of
generating reactive responses to external
challenges has almost invariably fallen on him.”
According to Koh, “[t]he same public opinion that
has empowered the plebiscitary president has
simultaneously subjected him to almost
irresistible pressures to act quickly in times of
real or imagined crisis.” Koh attributed what he
saw in 1990 as “the recent wave of treaty
breaking and bending” as a reflection of a
“reactive presidential role in leading both
America’s flight from international organizations
and its movement toward alternative mechanisms of multilateral cooperation.”
Koh cites “President Reagan’s use of short-term
military strikes and emergency economic powers
(to respond to terrorism); longer-term military
commitments in Lebanon and the Persian Gulf (to
respond to requests for peacekeeping); arms sales
(to respond to military tensions in the Middle
East); and covert actions (to effectuate
neo-containment policies in Central America and
Angola) [as reflections of] the modern American
perception that crisis situations uniquely demand a presidential response.”
Whatever the reasons for “presidential
initiative,” it is clear that such initiative is
at the bottom of the abuses found behind the
present detentions of combatants. It is clear
that, whether or not we should require presidents
rather than Congress to be responsible for
creating and carrying out foreign policy, the
President now is responsible for those things and
thus cannot claim both to lead the nation and
simultaneously evade responsibility for the
egregious acts of subordinates who follow his
policies. Having issued orders that intentionally
evade and violate the central international laws
relating to detention and status determination of
belligerents, having sanctioned indefinite
detentions and interrogations that violate those
same laws, which ultimately led to torture and
murder committed by soldiers and military
intelligence personnel, the President and his
advisers are ultimately responsible for the
consequences of those violations. They may not
evade such responsibility merely by stating that
laws do not apply, or as Charles B. Gittings of
the Project to Enforce the Geneva Conventions put
it recently in an amicus curiae brief in the
Guantanamo Bay Detainee Cases, they may not
“commit war crimes with impunity [simply] because
they are responsible for enforcing the laws.”
We have reached a critical point in our history,
a point which has ramifications as far-reaching
as the Civil War or World War II.
This is a considerably shorted version of an
article (without the footnotes) by Jennifer van
Bergen and Douglas Valentine in the Case Western
Reserve Journal of Internatiomal Law, Vol. 37,
nos 2 and 3, 2006. The original, with footnotes
and appendices, may be viewed at:
<http://www.jvbline.org/dangerousworld.pdf>www.jvbline.org/dangerousworld.pdf.
Jennifer Van Bergen, a journalist with a law
degree, is the author of
<http://www.amazon.com/exec/obidos/ASIN/1567512925/counterpunchmaga>THE
TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA
(Common Courage Press, 2004) and
<http://www.amazon.com/exec/obidos/ASIN/1932907254/counterpunchmaga>Archetypes
for Writers: Using the Power of Your Subconscious
(Michael Weise Productions, 2007). She can be
reached at <mailto:jvbxyz at earthlink.net>jvbxyz at earthlink.net.
Douglas Valentine is the author of four books,
including The Phoneix Program, which are
available at his websites
<http://www.members.authorsguild.net/valentine/>http://www.members.authorsguild.net/valentine/
and
<http://www.douglasvalentine.com/index.html>http://www.douglasvalentine.com/index.html
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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