Shadow Prisoners

05/16/2010 05:12 am ET | Updated May 25, 2011

Back in the late 1970's, many governments in Latin America waged coordinated campaigns of major criminality within their respective borders and against their own citizens. People would just go missing and their government was responsible. Families were left with a hole where their father, mother, brother or sister had once been and there was no means of filling that hole. The human rights movement gave this phenomenon a name... "disappearance." Naming this phenomenon helped human rights organizations mobilize against this evil practice. It gave this human rights abuse a face, a title, a handle and a short way to explain this government sponsored criminality.

Today, my sense is that we need another name for a phenomenon growing in our own government here in the United States. It is criminal as well. Since the attacks of 9/11, the U.S. government has tortured people captured in the course of the war on terrorism. It's always called something else, like "enhanced interrogation;" but, make no mistake, it is torture. Obama has said that the U.S. government does not torture, but substantial evidence refutes this assertion. There are government memos detailing the allowable physical and psychological abuse that can be inflicted upon people held prisoner by U.S. forces. There is the testimony of those held in places like Guantanamo Bay and Bagram, and later released by the U.S. military. And then there are those horrifying photographs of U.S. soldiers abusing prisoners held at the Iraqi prison in Abu Ghraib. The Obama administration is not interested in pursuing either the lawyers who actually approved of torture and wrote memos in support of it or the doctors who participated in monitoring the effects and prolonging the torture of detainees. This is very unlike the formerly repressive regimes in Chile, Argentina and Peru, where government abuses were investigated by succeeding administrations and human rights abusers were prosecuted.

People forget that, in Nazi Germany, the first two classes of professionals who went over to support Hitler were the doctors and lawyers. It is the same now for this new phenomenon. Before 9/11, the American government hated torture, enacted laws against it and pressured other governments to prevent it. The United States would cut off international aid to "human rights abusing nations." We were the angels of democracy and condemned the devils of torture. No longer. Not after 9/11, when lawyers acting under the authority of the United States military effort decided that they could redefine torture. One of these lawyers ended up as a professor and the other is... hold on, a U.S. federal judge. Members of the medical profession, too, are guilty of enabling the U.S. military by offering questionable medical opinions regarding what type of treatment a prisoner can endure and then monitoring the abuse during the course of interrogations.

Somehow, the U.S. government would have the world believe that it knows who the bad guys are, even without any discernible due process. And so it only hurts those detainees who have already hurt us or could hurt us in the future. Few American soldiers went to jail after being photographed torturing prisoners in their custody. No generals were held accountable; no CIA agents; no Blackwater contractors. General Petraeus knows this and has spoken to the issue. More troubling, there is a double standard which hurts U.S. military efforts. The fact is that the generals and enlisted troops know that they can go to jail if they have been found to have mistreated prisoners, but military contractors performing the same function are more likely to avoid prosecution.

I propose using the word "shadows" to represent all of the people held without bail, judge and lawyer. "Enemy combatants" is the new word because the U.S. military would like to avoid using more traditional terms that suggest detainees have rights, even while in custody. The term is a sanitized form designed to suggest that the people in custody are somehow already guilty of acts against the United States. The United States should conform to some standard of transparency and publish the names of those held in its custody. The world's greatest democracy should not be in the business of spiriting people out of sight and outside of a legal system with built-in safeguards. The United States should not create shadows while it pursues its security objectives.

If, in fact, American legal power can create a class of people who cannot avail themselves of the protections of an impartial judge and an attorney to represent them, then the United States will be stripped of its righteousness and be reduced to a military force in the world that operates off of old standards and old military habits. We will thus strip the Constitution and the Bill of Rights of their majesty and turn the U.S. into the policemen of the world, on every corner of the earth, mighty but not moral.