“How long does it take to question a man? A year? Two years? Ten years? A lifetime? Can the military do anything they want with him, without a tribunal?”
This was just one of the probing questions put this week by a frustrated federal judge in the USA who was hearing an appeal by a father of one of ‘the disappeared’ to find out what had become of his son since he was kidnapped in November 2001.
Amnesty International has reported that more than 1,200 people, mainly foreign nationals, have been detained by the US since September 11th. (How many are aware that there are also people interned without trial in Britain?) Many were held in prolonged solitary confinement, and suffered physical and verbal abuse. Currently, there are several hundred prisoners being held in secret and the administration refuses to name them or grant them access to lawyers.
On September 11th last year over three thousand people, who had no involvement in US imperialism and were responsible for no oppression, were horrifically killed in terrorist suicide bombings in New York and Washington. There was widespread sympathy from around the world, including from many of its former enemies, for the pain the people of the USA were experiencing.
There was also some initial hope that the US administration would acknowledge that the bombings were not unrelated to US foreign policy, particularly its unqualified support in the Middle East for Israel and its maltreatment of the Palestinian people. There were intimations that US foreign policy would be more even-handed and that it would act on Israel to enter into meaningful dialogue with the representatives of the Palestinians. Indeed, on that assumption, many countries tacitly went along with the US/British bombing and invasion of Afghanistan to overthrow the fundamentalist Taliban government which hosted the principal suspect of the US bombings, Osama Bin Laden from Saudi Arabia.
But the administration of George Bush resiled from its promises and the Middle East, for one, is in a more precarious state than ever. And in Afghanistan it is not even safe to go to a wedding without being strafed by US fighter jets. (In early July US planes - including a B-52 bomber and an AC-130 helicopter gunship - dropped seven 2,000lb bombs on an Afghan village, killing forty people, mostly women and children.)
Yaser Esam Hamdi, aged 21, was captured in Afghanistan with Taliban forces, then flown half-way around the world to Guantanamo Bay in Cuba to a US naval base where he was held incommunicado. It was then discovered that he was born in Louisiana and was entitled to US citizenship. Earlier this year he was transferred to a Navy brig in Virginia. The US government has declared Hamdi an “unlawful enemy combatant”, entitled to neither constitutional protections nor international prisoner-of-war status.
Hamdi’s father requested at two earlier hearings before US District Judge Robert Doumar that his son be allowed to see a lawyer. There is no evidence that he had anything to do with the September 11th bombings.
Doumar ruled Hamdi’s right to see a lawyer but this was overturned by the Circuit Court of Appeals. Judge Doumar was then instructed to revisit the case with greater consideration to national security and the executive branch’s constitutional right (that is, George Bush, the Commander-in-Chief’s right) to wage war.
Michael Mobbs, a special adviser in the Defense Department, sent a two-page declaration of facts to the court to explain how they determined that Hamdi was an enemy combatant. Judge Doumar asked for additional information but prosecutors declined to supply it. The government was represented by Assistant Solicitor General Gregory Garre.
The judge asked Garre, Who is Mobbs and what qualified him to be a “special adviser”? Garre said Mobbs was an undersecretary of defense, substantially involved with detainee issues.
“My secretary’s familiar with the Hamdi case,” the judge said. “Should she decide? She’s a special adviser.” The judge said that Mobbs’ declaration of facts didn’t say how long Hamdi would need to be detained and for what purpose.
“How long does it take to question a man? A year? Two years? Ten years? A lifetime?”
“The present detention is lawful,” Garre replied.
Doumar then asked: “What restraints are there?”
Garre ignored the question and said Hamdi had asked to speak to diplomats from Saudi Arabia where he was brought up after leaving the USA.
“Can I beg you to answer my question? If the military sat him in boiling oil, would that be lawful?”
Garre said he didn’t think that that was being proposed. He said that the courts had a limited role and that the executive was the branch which was in the best position to make the military determination.
Doumar said that he had no desire to have an enemy combatant get out of any status. “However, I do think that due process requires something other than a basic assertion by someone named Mobbs that they have looked at some papers and therefore they have determined he should be held incommunicado. Just think of the impact of that. Is that what we’re fighting for?”
Judge Doumar has reserved his judgment but made a damning comparison with what is happening to civil liberties since September 11th.
“I have tried valiantly to find a case of any kind, in any court, where a lawyer couldn’t meet with a client,” he said. “This case sets the most interesting precedent in relation to that which has ever existed in Anglo-American jurisprudence since the days of the Star Chamber.”
The Court of Star Chamber, 1487 - 1641, was named after the star pattern painted on the ceiling of the room at Westminster Palace where its meetings were held. It could order torture, imprisonment and fines and became a byword for misuse and abuse of power by the king and his circle. Court sessions were held in secret, with no right of appeal, and punishment was swift and severe.
In a brief the US government affirms that “the military has the authority to capture and detain individuals whom it has determined are enemy combatants in connection with hostilities in which the Nation is engaged, including enemy combatants claiming American citizenship. Such combatants, moreover, have no right of access to counsel to challenge their detention.” This means that the US has granted itself the power to go into any country in the world, seize any persons it wishes, bring these persons to anywhere it chooses, can ignore the Universal Declaration on Human Rights, can refuse to name its prisoners, does not have to charge them or put them on trial, allow them access to legal representation or access to family visits. These sweeping state and military powers are unprecedented, and they are all carried out in the name of “the war effort”, even though there has been no congressional declaration of war.
The right of the military to detain individuals indefinitely without charges or hearings were the hallmarks of fascist or communist regimes which had to be resisted and opposed.
At least that’s what US administrations once told us.
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© 2007 Irish Author and Journalist - Danny Morrison