|
Law Review Article Case Western Res. J. Intl Vol 37:448
THE DANGEROUS WORLD OF INDEFINITE DETENTIONS: VIETNAM TO ABU GHRAIB
Jennifer Van Bergen† and Douglas Valentine††
I. INTRODUCTION 1
The thesis of this paper is that where you find administrative detentions,you are likely to find torture. We will show that this connection exists even where it is clear that investigations and screenings leading to such detentions are, as Alberto Gonzales put it, "not haphazard, but elaborate, and careful . . . reasoned and deliberate."
This reason is simple and can be traced to the elements of adminis-trative 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, stan-dards, and procedures; inadequate adversarial procedural oversight; exces-sive 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:
This year we are witnessing not just a series of brutal but fundamentally independent human rights violations committed by disparate governments around the globe. This year we are witnessing something far more funda-mental and far more dangerous. This year we are witnessing the orches-trated destruction by the United States of the very basis, the fragile scaf-folding, upon which international human rights have been built, painstakingly, bit by bit by bit, since the end of World War II.4
The system has been intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnam War.
A. Buried Truths about Detentions and Torture
Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("PATRIOT Act") provides for the "mandatory detention of suspected terrorists."5 This section nowhere refers to the detentions as "administrative detentions," which result from administrative (that is, Executive Branch), not judicial, determinations. Yet this is exactly what they are, and they have been used before. The U.S. Government’s internment of Japanese immigrants during the Second World War is perhaps the most recognizable example. Section 412(a) authorizes the Attorney General to take into custody any alien whom he certifies as a terrorist. The alien may be detained indefinitely, in renewable periods of six months, as long as the Attorney General determines that he is a threat to national security, or endangers some individual or the general public.
Administrative detentions—sometimes called preventive detentions—are, by definition and practice, sought only during “national emergencies.” The emergency is the rationale for depriving suspected terrorists of adequate due process or human rights safeguards. A declaration of a national emergency is generally made unilaterally by the President and, once declared, the administrative detention laws may stay on the books for decades. This is one of the primary reasons why they are so dangerous, for without any Congressional determination of the beginning or end of hostilities, these inherently anti-democratic laws may be used for purposes of political repression.
In promulgating the PATRIOT Act administrative detention provision, Congress unlearned the lessons of our founders. They subverted treasured safeguards found in the Declaration of Independence, the U.S. Constitution, and its core Bill of Rights.
In enacting Section 412, Congress forgot its own teaching from only thirty years earlier when, in 1971, it repealed the Emergency Detention Act of 1950 (a law enacted in reaction to the hysteria of the Communist scare of the infamous McCarthy era) and enacted the Non-Detention Act, prohibiting the detention of United States citizens “except pursuant to an Act of Congress.” The Emergency Detention Act (“EDA”) was modeled on the detention laws used to incarcerate people of Japanese descent during World War II and passed by Congress over President Truman’s veto. The EDA provided for administrative detentions of persons whom the Attorney Administrative detentions—sometimes called preventive detentions—are, by definition and practice, sought only during “national emergencies.” The emergency is the rationale for depriving suspected terrorists of adequate due process or human rights safeguards. A declaration of a na-tional emergency is generally made unilaterally by the President and, once declared, the administrative detention laws may stay on the books for decades. This is one of the primary reasons why they are so dangerous, for without any Congressional determination of the beginning or end of hostilities, these inherently anti-democratic laws may be used for purposes of political repression. In promulgating the PATRIOT Act administrative detention provision, Congress unlearned the lessons of our founders. They subverted treasured safeguards found in the Declaration of Independence, the U.S. Constitution, and its core Bill of Rights. In enacting Section 412, Congress forgot its own teaching from only thirty years earlier when, in 1971, it repealed the Emergency Detention Act of 1950 (a law enacted in reaction to the hysteria of the Communist scare of the infamous McCarthy era)9 and enacted the Non-Detention Act, prohibiting the detention of United States citizens “except pursuant to an Act of Congress.” The Emergency Detention Act (“EDA”) was modeled on the detention laws used to incarcerate people of Japanese descent during World War II and passed by Congress over President Truman’s veto. The EDA provided for administrative detentions of persons whom the Attorney General believed might commit espionage or sabotage, if the President de-clared the existence of an “internal security emergency.”
The EDA was never invoked and ultimately was repealed because it came widely to be viewed as dangerous to civil liberties. Truman, in unsuccessfully attempting to veto it, had noted that it “would make a mockery of our Bill of Rights [and] would actually weaken our internal security measures.”
Today’s Congress seems to have forgotten the lessons of history and since September 11th many Americans have blindly accepted the Bush Administration’s assertion of authority to indefinitely detain persons without a trial. We believe the government is only detaining terrorist suspects to keep them from doing us harm. Having put our faith in the government in a time of a perceived emergency, we believe the Administration’s intention is to protect their freedoms, not to create a system for creating and abusing detainees.
Yet, legal scholars have raised concerns about the PATRIOT Act’s detention provisions, as well as the detention provisions of the Military Commissions promulgated under President Bush’s Military Order of No-vember 13, 2001, which allow the Secretary of Defense to detain designated alien terrorist suspects without the restrictions that Section 412 contains. Additionally, the detentions of U.S. citizens Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri16 have raised concerns. President Bush, citing his power as Commander-in-Chief and the laws of war, has unilaterally declared these individuals “unlawful enemy combatants” subject to indefinite detention without trial or access to an attorney and without providing for a status determination hearing by a competent tribunal, re-quired by the Geneva Conventions. The central concern raised by qualified legal observers about these detentions generally involves issues of due process and other constitutional and/or human rights guarantees.
However, 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.
Additionally, the detentions of U.S. citizens Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri16 have raised concerns. President Bush, citing his power as Commander-in-Chief and the laws of war, has unilaterally declared these individuals “unlawful enemy combatants” subject to indefinite detention without trial or access to an attorney and without providing for a status determination hearing by a competent tribunal, re-quired by the Geneva Conventions. The central concern raised by qualified legal observers about these detentions generally involves issues of due process and other constitutional and/or human rights guarantees.
However, 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.
Nonetheless, the close historical connection between administrative detentions and torture has largely remained unrecognized.
In this paper, we show that the conjoining of administrative deten-tions and torture is sadly by no means new to U.S. Government policies and practices. Specifically, we show that during the Vietnam War, the United States engaged in a massive program of indefinite administrative detentions in South Vietnam of persons considered "dangerous to the national secu-rity" that engendered widespread torture and deaths of terrorist suspects.
There are many similarities between the Vietnam detentions and those used in the War on Terror, and those similarities are found not only within the procedures themselves but in the rationales for and policies be-hind them—and even in the conditions of fear that created them.
We do not attempt to show here that administrative detentions alone compel the use of torture. Our view is that where administrative detentions are used—where, during a perceived national emergency or threat, people are detained without due process—torture is only a small step away.
Furthermore, 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. We will show that these components now also appear in U.S. law and policies in the War on Terror.
Behind this web is a disturbing logic rooted in the dark side of the human psyche. The purpose of detention is to keep the individual secured, obtain a confession or intelligence on other suspected terrorists, and some-times to turn a suspect into a double agent. Torture in varying degrees has historically been used to achieve such results. Intelligence laws (spying on suspects without probable cause of criminal activity) and "national security courts"23 or military tribunals (conducted without adequate due process and other constitutional protections) support the purpose of administrative de-tentions, as does ignoring the Geneva Conventions. We will thus spend some time discussing each of these issues.
Just as it prevents publishing photographs of body bags of dead U.S. soldiers, the Bush Administration uses censorship, disinformation and propaganda to carefully conceal the brutal logic of its unstated policies from the public. But as news reports increasingly show, the connection between administrative detentions and torture is far from tenuous, or, more impor-tantly, far from unintentional. And any administration that engages in the intentional creation of such a web—a criminal conspiracy—should be held responsible for the predictable result.
Because we feel that the convergence between the practices of these two periods (Vietnam and today) is most clearly illustrated by a review of the laws and procedures, we have not attempted here to survey details of engage in torture. For our purposes, it is sufficient that abuse and torture have historically occurred where administrative detentions were resorted to. One would have thought that, if not Vietnam, World War II would have taught us this lesson. One would have thought that a nation which was in large part responsible for the rescue of tens of thousands of Concentration Camp survivors and was a judicial participant in one of the most significant war crimes tribunals in history, the Nuremburg trials, would know better. How American officials could justify the detention camps in Vietnam, knowing about the torture and murders of innocents in them, after having witnessed Hitler’s internment camps and learned of the horrors he perpe-trated in them, is an unanswered question. But, after the revelations of Viet-nam—which all came out in congressional hearings in 197125 that led to both the repeal of the EDA and ultimately by degrees to "reforms" of the CIA’s Phoenix Program, contributing to the end of that protracted War—Section 412 and Bush’s Military Commissions and unlawful enemy com-batant designations are inexcusable
There are certainly many more comparisons that could be made to the present detention situation but they are beyond the scope of this article.26
Here we wish merely to raise similarities between current administrative detention policies and those used in Vietnam. We believe that our conclu-sions reveal crucial buried truths about administrative detentions that de-serve to be fully vetted and considered in the light of day in order to prevent the same horrors that occurred in Vietnam. We hope that this paper will point the way for Congress to reconsider the legality and advisability of permitting administrative detention in any guise.
|
