RHR2010: How Long Before Indefinite Detention Without Charge Becomes Permanent Betrayal of Our Values?
The day begins with shacharit (my favorite moment: singing a snippet of our abbreviated Hallel to the tune of "Maoz Tzur" in honor of Chanukah) and breakfast. After a word of welcome from (and a brief commercial for) UJA / Federation New York, we begin our first plenary session of the day:
How Long Before Indefinite Detention Without Charge Becomes Permanent Betrayal of Our Values?
This session features Donna Lieberman, New York Civil Liberties Union; Gabor Rona, Human Rights First; Michael Ratner, Center for Constitutional Rights; and Rabbi Marla Feldman, Union of Reform Judaism.
"Indefinite detention is another form of slavery," says one of our welcomers. We read just two weeks ago about Joseph being put into Pharaoh's prison -- "that was a form of indefinite detention!" But even if some of the prisoners in Guantanamo could interpret dreams as Joseph did, that wouldn't get them out of prison.
"Nearly a decade after the horrific 9/11 attacks, we're still living very much under their shadow," says Donna Lieberman. "Of course the pain of those who lost loved ones is very fresh. But the collateral damage to our civil liberties is remarkably ongoing." Government behavior which would have once been unthinkable has become the new normal: indefinite detention, surveilance, all in the name of "national security" and the global war on terror. Many of us thought that when the Bush regime was over, the worst offenses would cease -- but we know now that this has not been the case.
Lieberman introduces our panelists (I'm not taking notes on their bios -- you can read about these folks if you click on the links to their names, above) and then we get rolling. Our first speaker is Rabbi Marla Feldman, who begins by laying out the Jewish foundation of our thinking on these issues and explains that after she starts with these basics she'll speak more directly to the subject of this panel. We often speak, she notes, of the notion of human beings being created in the divine image, b'tzelem Elohim. "That means that all human beings should be treated with dignity, as equals, with one another." Jewish tradition also impels us to treat the strangers in our midst as one of our own, "for we were strangers in the land of Egypt. So citizens and non-citizens were governed by the same laws" in the ancient world, she says. "Jewish tradition commands us to treat them as one and the same."
Throughout Jewish tradition -- not just in Biblical tradition, but more so in rabbinic tradition -- are concepts of what it means to maintain a just judicial system. The commandment to have a just legal system is one of the 7 Noachide laws. Torah tells us Tzedek, tzedek tirdof -- "Justice, justice shall you pursue." It's not enough to merely light candles at festivals or celebrate holidays at certain times; "in the case of the pursuit of justice, and the pursuit of peace, we are obligated to affirmatively seek out opportunities to fulfil that mitzvah" all the time.
In the holiness code, the section of LEviticus which begins "You shall be holy, for I the Lord your God am holy," begins with the idea of being created in the divine image. What follows, Feldman argues, is a blueprint for establishing a society established on principles of justice and mercy. This section of Torah commands us to leave the corners of the field for the poor and needy; we have instructions for how to treat the poor, the vulnerable, the needy, seniors, widows, orphans, those who are disabled. It is our obligation to create a society which cares for all. In that section of Torah we're also instructed to create a court system which favors neither the rich nor the poor. We can't bend over backwards for the underdog, nor can we favor the wealthy in our system of justice.
"Justice, justice shall you pursue" is in the singular, in the Hebrew. (The "you" is individual.) "I need to pursue it; you need to pursue it. As individuals we are commanded," Feldman says. In contrast, the holiness code is in the plural. The collective community is obligated together to create a just legal system. "So both as individuals, and as a community of faith, and as a community of human beings, we are all obligated to create that legal system." A final Torah idea about human rights: if you see someone doing something wrong and you do not speak up, you are culpable. If we see our government doing something wrong, and we do not speak up, we are culpable ourselves.
One could never argue that Jewish tradition is soft on crime. In the rabbinic tradition you have extensive codes... the punishments range from fines, to imprisonment, to lashes, to the death penalty. However, the guidelins for those courts are specified -- and there are so many layers of requirements having to do with evidence that it was rare that the death penalty was ever imposed! ... Our tradition has a very robust history of looking at the judicial system and balancing the needs of the society for security with the rights of the defendant to be judged fairly.
One of the principles which became popularized in the Middle Ages, Feldman tells us, is the idea of redeeming the captive. During the Middle Ages, kidnapping and ransoming Jews was a part of medieval society. The rabbis developed specific rules for what one would pay to redeem someone who had been held captive. "This had to do with fellow Jews," she notes, "but within our own community, those who were in captivity were at risk... If someone is hungry, you feed them; if someone is thirsty, you give them water; if someone is captive, you presume that all of those circumstances affect that person, and so first and foremost you have to redeem someone who is held captive."
In the weekly lectionary of Torah readings, we're in the Joseph story, Feldman reminds us, a story which begins with Joseph being sold into captivity and then injustly incarcerated indefinitely. Once released, he rises to be second only to Pharaoh in Egypt, so that when during the famine his brothers come seeking food, he is in a position to help them. "The one who had been imprisons then imprisons his brother," she reminds us. "He unjustly accuses his brother of theft, and holds his brother in prison indefinitely." This week's Torah portion begins with an impassioned plea by Judah for the release of Benjamin -- a wonderful plea for redeeming a captive, which may inspire us as we enter this conference," she says.
Questions from Jewish tradition: What about all the cupbearers and the bakers who are still in Pharaoh's prison? Who were their advocates, and what happened to them? With which Joseph do we choose to identify -- with the Joseph who was imprisoned unjustly, languishing not knowing if he would ever be free, or do we identify with the Joseph who in anger and bitterness imprisons his own brothers? And who are today's Judahs, who will plead for those who are imprisoned justly or unjustly?
Our next speaker is (I think) Michael Ratner. When an American president can say "I waterboarded somebody and I'd do it again," we have a serious problem around accountability on torture, he argues.
The issues we're raising today are issues of indefinite detention -- detention without charges and trial -- and if there are trials, what kind of trials would there be? in front of military commissions or in federal courts? This began, at least in the modern period, after 9/11, with an order issued nine years ago on November 13, 2001, the Bush military order #1, which laid out a few things that are still the key issues we're engaged in today. One is, it said essentially that terrorist acts were to be treated as acts of war, under a war paradigm rather than as crimes...
The second thing that order said was that the president had the right to pick up any non-citizen anywhere in th world and hold that person in detention indefinitely, essentially forever. And that's still a policy today. And the third part of the order said that if someone is to be tried -- and they don't ever have to be tried! -- they're going to be tried by a mlitary commission. These are the key issues that are before us.
The fourth issue, Ratner says, was that no one who was indetention of any kind could go into court to challenge their detention. "It took us until 2008 to finally get the Constitutional right to challenge detentions in court; those cases are still going on." We are approaching the 10th year of Guantanamo; January 11 will be the tenth anniversary of the first prisoner entering Guantanamo. "Obama, as you know, promised that he would close Guantanamo." It will soon have been two years since Obama signed that order. In May of 2009, Obama said, "The existence of Guantanamo likely created more terrorists around the world than it detained...that is why I have ordered it closed within one year."
"What we're seeing, as our Democratic administration embraces some of the excesses of the Bush administration, is that some of this lawlessness is becoming a permanent fixture of our democracy, and that is extraordinarily serious," Ratner says. This reminds him of a situation with the courts in Northern Ireland, when court systems were modified and those changes slowly crept into the regular judicial system. "What's happening is that these laws are slowly, and will slowly, creep into the normal way that federal court trials and justice happen in this country."
At Guantanamo today, 174 people remain. "Why are those people still there? 88 -- or slightly more than half -- have been approved for transfer, in other words, getting out of Guantanamo." The government says they are no longer enemy combatants, or the federal court says they have to get out, or the review task force says they should no longer be there. "But some of these people have been there for nine years," Ratner reminds us, "and closing Guantanamo is no longer a priority." He blames this on a retrograde Congress saying that you can't bring these people into the United States, and no other country wants to do us that favor. "And at least half of these people are from Yemen. They're not guilty of anything! They were picked up by mistake, wrongly, or by bribes," Ratner says. "But after the so-called Christmas attempt, it was decided that we couldn't send anybody back to Yemen. The question I would ask is, why should those who are innocent suffer for that reason? They're not considered terrorists, not alleged terrorists -- but they're there, stuck, in that situation."
Ratner tells us about going into a federal court and arguing habeas corpus, as a complete outrage, when a client is held one day longer than he should be. And yet, these people have been in Guantanamo for going on ten years. "Let's get them home," he says, or if they can't come here, let's get them somewhere else. "It's arbitrary detention, because they're there without any lawful reason. Even after a court has ordered them to be released, the government says, we don't think a federal court has the right to release somebody. That's indefinite detention, and it's arbitrary detention."
And what about the other prisoners, those who aren't in the 88 who've been approved for transfer? Some have been "referred for prosecution," but no one says what kind of prosecution. Is it prosecution by military tribunal, or should they be in federal courts? "My office is very clear that military commissions are illegal. You do not set up trials after the fact. They can only be used in certain narrow circumstances. We insist that the people who are to be tried, be tried in federal courts, or released. You don't set up a rum tribunal!"
Those 86 who are left -- 36 are referred for prosecution, and there are 48 of whom the government now says they can be held indefinitely. "That's really the same policy as the Bush administration," Ratner says. "Our position is that no one can be held indefinitely." There was a suggestion by the right wing to make permanent this inefinite detention; Ratner reads to us from an essay which says that Louis the 14th had it right in the man in the iron mask, that we should keep them detained indefinitely and give them fresh hay every so often. But his office, he says, doesn't believe in indefinite detention or in these military tribunals. (He's repeating himself somewhat on this front, as if to underscore the importance of these two points.)
Our next speaker is Gabor Rona. "It's useful for those of us who are in the details of the legalities from day to day to step outside of those details, and learn more and think more about how to talk about these topics to non-lawyers," he notes. He tells us about a column he read recently about Chanukah (some quick Googling leads me to Rabbi Shmuley Boteach) in which the author compared the Maccabees to the world as reflected in the recent Wikileaks of diplomatic cables. The cables reflect a world of inauthenticity, in which allies are praised in public and pilloried in private. The Maccabbees, this rabbi argued, are poster children for living your values out loud. "I'm not convinced that Maccabbees vs. US diplomacy is a spot-on comparison," Rona says, to some laughter, "but there is a lesson in this: that inauthenticity can and does degrade and poison communities, individuals, and the body politic."
He projects on the screen in front of us an excerpt from a Bush memorandum of Feb 7, 2002:
Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
This is what the public was told, and it sounds nice. But what we're missing, he argues, is that the administration considered that there are those who are not legally entitled to humane treatment. The administration considered that it was not obligated to provide humane treatment to certain individuals, and that it would not provide human treatment to those individuals when it felt that it was necessary to withhold that humane treatment on grounds of military necessity. "The function of the statement was the exact opposite of what many people believed that it was. This was the beginning of a series of events, statements and conduct in which a fork in the road caused the administration to be saying one thing while it was doing another."
Then came the question of where to put detainees. He shows us an excerpt from a paper presented at the National War College, about how the choice of Guantanamo was made. "The essential fact that determined why Guantanamo was simple: it was the only place on earth controlled by the US and, in the opinion of the administration, where official conduct could not be scrutinized as intended by the Constitution." He shows us an excerpt from the 1996 War Crimes Act, which prohibited, among other things, "violations of common article 3 of the Geneva Conventions." Common article 3 of the Geneva conventions, among other things, prohibits "passing sentences and carrying out executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." And that was a problem for the administration, which changed our war crimes law so that there were different classes of common article 3 violations, some of which are war crimes and others of which are not.
He likens this to his child denying that she's taken a cookie from the cookie jar even before he's noticed that a cookie gone. "In the law and policy-making bodies of a country which considers itself to be the leader of the free world, this is a disgrace. The corrosive effect of lying to ourselves, as evidenced in the reasons for the establishment of Guantanamo, as evidenced by our administration covering its tracks... in the duplicitous language which was the essence of all of these policies... the corrosive effect of all of this lying to ourselves is not only internal. The tangled-web effect has us thwarting other countries' enforcement of their own legal obligations."
On a recent trip to Indonesia, President Obama was asked his opinion of human rights abuses committed by President Suharto, and said, "We have to acknowledge that those past human rights violations existed. We can't go forward without looking backwards." And yet when he was asked about President Bush's human rights violations, he said he was a strong supporter of looking forward, not looking backwards. "When we lie to ourselves to justify and protect our human rights violations, we degrade ourselves; we degrade our international currency," Rona says. That Obama has one answer about American human rights violations and another answer for Indonesian human rights violations does not go unnoticed around the world.
"Peace is not merely the absence of violence. It is the presence of justice," said Martin Luther King. "I think it is our responsibility to be sure that our leaders take ownership of their professed values." Whether or not you agree with the policies of the Bush or Obama administration, we should still demand that they state what they believe and that their actions accord with their stated beliefs. "I would entreat you," Rona says, "to go out and tell those of us who are the stakeholders in this democracy that it is our responsibility to make sure that our leaders actually live our values." When they do, we'll have a better chance of connecting security and human rights.