THE CASE CURRENTLY BEFORE THE SUPREME COURT

On December 5 of this year, the United States Supreme Court heard arguments concerning an appeal of the consolidated cases of Al Odah v. the United States and Boudmediene v. the United States, both of which would have allowed detainees in the so-called "War on Terror" access to a writ of habeas corpus. Like many people, I had marked that date on my calendar well ahead of time, and given a sizable contribution to the Center for Constitutional Rights, which has taken the place of the increasingly impotent ACLU in the fight for civil liberties, to help it prepare its defense. I expected a vigorous argument which would make it possible for the court to strike down the Military Commissions Act of 2006 (MCA), the most dangerous law ever passed in U.S.history, which-- ignoring the guarantee of habeas corpus in Article One, Section Nine of the U.S. Constitution-- would for the first time make it possible for even American citizens to be incarcerated indefinitely and tortured as "Illegal Enemy Combatants". But when I watched the News Hour with Jim Lehrer on that and the following days, I was badly disappointed. For the counsel for the petitioners had disastrously allowed the enemy to lay down the ground rules of the debate. Again and again, the "rubber stamp" Justice Antonin Scalia asked the appealing counsel, "Have habeas rights ever been extended to someone not on U.S. territory?" I don't know how the counsel for the petitioners answered in the courtroom, but the lawyer who appeared on the News Hour to discuss the case, who had evidently played a major role in previous victories for detainees' rights in Hamdan v. Rumsfeld and Rasul v. Bush , accepted that as the relevant question, arguing that Guantánamo was sovereign U.S. territory. His opponent argued that is was not, an argument that would surprise Fidel Castro! This was a disastrous mistake. In fact, the answer to Scalia's question is a resounding "Yes", precisely because habeas rights are extended to prisoners not on the basis of the location where they are being held, but rather their legal status.

Before 9/11, there were two categories of people who could legally be detained by the United States government. One was Prisoners of War, or POWs. The other was criminal suspects. The first enjoyed the protection of the Geneva Conventions, as the second enjoyed the right to a writ of habeas corpus-- these were rights which went automatically with their legal status. In a number of very famous cases, people were considered both POWs and criminal suspects: i.e., after World War II, German and Japanese leaders taken prisoner of war were also charged with war crimes. As someone who has written a biography of Albert Speer, I know that he was one of these people. He was originally taken prisoner of war in May, 1945, having more or less defected to the Western Allies in disgust over Hitler's intention to sacrifice the German people rather than surrender. For months he was interrogated in such a gentlemanly fashion that his own personal secretary was allowed to take the notes on which the summaries of the interrogations were based. Never was he asked questions pertaining to any war crimes he might have committed, the Allies having mistakenly concluded that he was a mere technician. And then, in September, 1945, while staying with other "mere technicians" at Kransberg Castle, he was shocked to hear over the radio that he was to be tried at Nuremberg. The Allies had finally awoken the possibility that he might be a war criminal. When he and other Nazi leaders were transferred to Nuremberg on October 6, 1945, an officer went from cell to cell delivering copies of the indictment. Along with them was a list a German civilian lawyers from which the defendants could choose their attorney if they did not have a choice of their own. Speer could not think of anyone, so he was assigned to Hans Flächsner. Speer had never been and never would be on sovereign U.S. territory. Yet from the start, he was treated as the Geneva Conventions require a POW to be treated-- indeed, much better than they require. As someone suspected of committing war crimes, he was given the rights guaranteed to criminal suspects. From the start of the trial, he was allowed to see the evidence against him and to prepare his defense along with his lawyer. And this was a high-ranking Nazi leader, associated with crimes which were far worse than any mere terrorist could have committed.

Compare this to the treatment meted out to detainees in the so-called "War on Terror". Some may indeed be terrorists, some may merely have been insurgents defending their country from what they viewed as an invasion, some may be completely innocent of any wrongdoing. We do not know-- indeed no one knows-- because these people have never been allowed to hear or contest the charges against them. Most-- especially those in secret CIA prisons-- have never been given a lawyer to speak up for them. Only those who are resident at the highly visible Guantánamo, the most privileged among the detainees, have been allowed this right, although they have been grievously abused in other ways. Unlike the Nazi war criminals, who were accused of killing over six million people and causing incalculable suffering to millions more, no person accused of terrorist activity since 9/11 has ever been given a fair and open trial, except for Zacarias Moussaoui, a bit player at best. Yet from the time they are apprehended, terrorist suspects are treated in a manner which is entirely contrary to both the Geneva Conventions and the U.S. Constitution. The methods used to "break" them, using techniques developed over the decades by the CIA and referred to as "Psywar", are known to produce mental confusion, loss of contact with reality, and-- if they are inflicted over a sufficiently long period of time-- psychosis. Thus the purpose of inflicting them cannot possibly be the acquisition of "actionable intelligence". Indeed, in a recent and shocking Newsweek article, a CIA official admitted that the majority of detainees, who no longer have any intelligence value, are still being tortured for purely vindictive reasons (October 8 issue, p. 66). The number involved may amount to some 3,000 (a figure taken from one of Bush's speeches by Chalmers Johnson, see Nemesis, p. 126). In contrast to Speer, whom we know committed crimes of colossal proportions, these prisoners are being treated worse than animals, and we do not even know if they are guilty.

Why are these people being treated in this manner, if not to obtain information? Because our government has invented a new classification for people in U.S. custody, the "Unlawful Enemy Combatant". This classification was not invented in order to prevent violence or save human lives. There is no reason why someone given the protection of law such as Speer cannot be convicted and sentenced to a severe punishment: indeed, twelve of the defendants at Nuremberg, having been found by the court to be guilty, were executed. The only reason for the existence of this classification is to facilitate the erection of a totalitarian state. Indeed, if one reads Alfred W. McCoy's A Question of Torture: CIA Methods of Interrogation from the Cold War to the War on Terror, or A.J. Langguth's Hidden Terrors: The Truth About U.S. Police Operations in Latin America, or Douglas Valentine's The Phoenix Program, one will see that the CIA has been getting a lot of practice in defending dictatorships on foreign soil. And its methods, to use a term coined by McCoy, have "metastasized" to all potentially repressive agencies of the U.S. government-- the military, other intelligence agencies, and the FBI, which used to be a legitimate law-enforcement agency but is being made over into a clone of the CIA. Wherever the CIA has helped to keep repressive governments in power, the object of its torture has been the suppression of any and all dissent--even the peaceful and law-abiding sort-- by striking terror into the hearts of political opponents, and the acquisition of false confessions, which can be used to convince the majority of people that a real threat to their security exists. An example of how our government uses torture to get what it wants was the "confession" of Ibn Shaikh al Libi linking Saddam Hussein with Al Quaeda, which was used as a justification for the war in Iraq. Al Libi later recanted but it was too late: the United States was involved in a war which still drags on with apparent hopelessness.

The decision in the present case before the Supreme Court is expected to be handed down by June of this year. If it does not strike down the MCA as unconstitutional that will be as bad giving it its seal of approval, for to rule on a case involving a law without protesting that it is unconstitutional is to uphold it. In that case, all normal means of halting the emerging totalitarianism in this country will have been exhausted, for Congress has shown itself to be completely incapable of confronting the executive branch-- in more than a year since the MCA was signed into law, it has succeeded neither in repealing nor amending it. And what to do when all normal means of obtaining redress of grievances have been exhausted? That is up to the American people to decide, but before they do, they ought to take a look at Jefferson's words in the second paragraph of the Declaration of Independence, the founding document of our now-threatened Republic.