THE BLOG
01/26/2011 12:08 pm ET Updated May 25, 2011

Torture and the Rule of Law

This month marks the second anniversary of President Obama's signing the order pledging to close Guantanamo Bay Prison before January 2010. We are a year overdue with no end in sight. The president faced steep opposition to civilian court trials from Congress: House Republicans and Democrats united to prevent accused 9/11 mastermind Khaleid Sheikh Mohammed from being tried in a New York civilian court. And it is was a Democratic Congress that recently voted to put a nine-month hold on the president's ability to transfer detainees to US soil. Together, the new congress and the Obama presidency must define whether the rule of law will prevail and we treat individuals we increasingly classify "non-persons."

Despite the successful trial of Ahmed Ghailani trial for the 1998 bombings of US embassies in Tanzania and Kenya, political opposition to the rule of law retains its vice-grip hold. Conservatives lead the charge to try detainees such as Ghailani in military tribunals outside of our constitutional court system, where they believe they will rack up convictions. The irony is overwhelming. Many of Ghailani's charges had to be dropped as they were acquired through the so-called "advanced interrogation techniques" that the Republican Party has championed since the Bush years. For so-called "Constitutional conservatives" I issue a challenge: instead of yammering that we need a system that "assures convictions," (military tribunals have secured five convictions vs. over 200 by Federal prosecutors), how about admitting that torture was why Ghailani couldn't be convicted with more than the 1998 bombing of the US embassy in Kenya? The denial of personhood brought about by the Bush administration's rejection of the Geneva Conventions and used to defend the use of torture is why prosecuting detainees is a Sisyphean task today.

The legal treatment of individuals as non-persons in the US has a dark history from the nineteenth-century Dred Scott decision to Korematsu in the twentieth. More than suffer minor indignities, minority groups have been deprived of their civil rights and even their legal personhood. One well-known example is the infamous 1944 decision in Korematsu v. US that allowed the president to indefinitely imprison Japanese Americans regardless of their citizenship. Such an embarrassing case is hardly anomalous in the context of US wartime actions. The US has repeatedly responded to national crises by granting enormous power to the executive branch. Whether it is by judicial action, by Department of Justice memos, or by legislation, as in the Bush administration's torture regime, vulnerable minorities have repeatedly faced government oppression and marginalization. From Dred Scott to the Bush administration's post 9-11 executive power grab we have witnessed massive assaults on legal personhood and politically opportunistic manipulations of national crises in order to institute radical political agendas that target those least able to legally defend themselves.

We tend remember the 1857 Dred Scott decision--"the black man has no rights the white man is bound to respect"-- as an example of ingrained racism rather than as specific assault on (Black) legal personhood. It is important to remember that Scott's appeal for legal standing ultimately resulted in the Court declaring -- for the first time -- that all African Americans were non-citizens. While the case is the climax of Dred Scott's struggle for freedom, the process he underwent to get there is equally critical. Taken from Missouri to Illinois to Wisconsin in the 1830s, Scott spent a significant amount of his life as a slave in the Free states. Though the case should have been a slam dunk, the Missouri Supreme Court was not isolated from the political pressure to validate the institution of slavery against growing Northern animosity. The newly elected pro-slavery judges on the Court bowed to the anger of the public and senselessly threw a well-established "once free, always free" principle out. In an act of unrivaled judicial activism, the Missouri Supreme Court made an overtly political decision to decimate black personhood.

In a move reminiscent of today's congressional maneuvers vis-à-vis the Guantanamo prisoners, the US Supreme Court took a legally unprecedented stand against the very possibility of black personhood. When the Supreme Court finally agreed to hear Scott in 1856, there was widespread recognition that the ultimate ruling would affect not only the Scott family, but also the constitutionality of the Missouri compromise. Then as now, this case was of sweeping importance for national stability. The ruling struck down the Missouri Compromise, asserted the legality of slavery, and most importantly declared that blacks were ineligible for citizenship. In the infamous "framer's intent" constitutional argument of Chief Justice Taney, blacks in revolutionary America had "no rights which the white man was bound to respect." Throwing aside precedent and historical accuracy (there were clearly free African Americans in revolutionary America), the Supreme Court made what has been described as the worst decision in history. Instead of exercising judicial restraint or common sense, the Court allowed its political convictions to dominate, overriding vast swaths of legal precedent and legislation.

The assault on legal personhood in the modern era has been waged from the White House rather than the Supreme Court, and the consequences are no less dire. An area of significant concern is the chilling effect that torture has on our ability to prosecute suspected terrorists in a court of law. Though many proponents of torture and indefinite detention point to the system of military tribunals as a "viable" alternative to the court system, this is problematic because the Supreme Court ruled in 2006 that military commissions lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions." Even a conservative Supreme Court ruled 5-3 that the military tribunals were an inadequate and illegal replacement for courts of law and due process.

Practically, the US courts of law have another feature: they cannot easily serve our enemies' interests. Many federal judges and prosecutors have come out in favor of the traditional criminal justice approach, pointing to its successful track record. As the prosecutor who headed the Violent Crimes and Terrorism Section of the US Attorney's Office for the Eastern District of New York opined in the New York Times: "If the Guantánamo detainees were prosecuted in federal courts instead of being designated as "combatants," most by now would be serving prison time as convicted terrorists, instead of being celebrated as victims or freedom fighters." The courts have been effective at bringing terrorists such as the Unabomber, the shoe bomber, the Times Square bomber, and the Oklahoma City bomber to justice.

Torture poses a long-term national security threat to the US that extends beyond the "War on Terror." Because the US has asserted its exemption from its international agreements, there is nothing to stop an enemy state from using similar rationale to torture American POWs. Policies such as the torture program erode our ability to use moral suasion to force corrupt dictatorships to cease their human rights abuses. As Human Rights' Watch's Advocacy Director Tom Malinowski testified, "America's detention policies are a gift to dictators everywhere." Without the moral authority exercised by the US in the past, the ability of the US to maintain primacy as a diplomatic superpower is at risk.

The way forward on ending the abuse of Guantanamo detainees is not easy. A recent poll shows that 63% of Americans prefer that Guantanamo Bay prisoners be tried in military tribunals. Civil libertarians have been shut out of a debate stuck between a party who defends torture and a party that's petrified of looking "soft on terror." Putting an end to the national nightmare of torture, rendition, and indefinite detention must be one of our top priorities.

Let's close Guantanamo Bay. Let's prosecute those who authorized torture. Let's put the accused masterminds of 9-11 on trial for all to see. There is no better way to commemorate the anniversary of the nominal end of the Bush Era human rights abuses than by ending them for once and for all.