"No freeman shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” 1The Supreme Court decision to render unconstitutional the provisions of the Military Commissions Act of 2006 that curtailed use of habeas corpus by detainees deemed "enemy combatants" by the Pentagon and held at the Guantanamo U.S. military base in Cuba has unleashed a spurt of vitriol from the right-wing establishment. As can be seen above, the Wall Street Journal has picked up the hysterical standard set forth by right wing ideologue Scalia in his blistering dissent to the Boumediene decision, accusing his fellow justices as nothing less than accomplices to murder. With John McCain jumping on the bandwagon, the GOP agenda for the fall campaign is thus established: a liberal Supreme Court, along with an ostensibly too-liberal and inexperienced Democratic candidate for President, are threatening our troops abroad, and making terrorist attacks at home a near certainty.
"One of the worst decisions in the history of this country.” 2
"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." 3
"In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." 4
"Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result." 5
"The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed." 6
This demagogic assault on civil liberties is dangerous. Setting up your political opponents as criminals is a half-step away from indicating they are outside the pale of appropriate discourse. Such opponents can be targeted themselves by those who are only too ready to carry out the wishes of those they serve. But I consider even more ominous the likelihood that such outlandish statements represent the opinions of the military establishment, who have constructed the Guantanamo hell-hole, and wish to do their best to keep the torture and abuse there as secret and unnoticeable to citizen awareness as possible.
Suspension of Habeas and Techniques of Torture
Few understand, nor is it hardly ever mentioned, that indefinite detention is an integral part of the U.S. torture program. This program, no matter what its day-to-day contingencies (today waterboarding is in, tomorrow it's out... today hooding is in, tomorrow it's out) relies on three essential components: the inculcation of debility, dread, and dependency in prisoners held for torture and interrogation.
By debility, one means the breaking down of physical and psychological stamina. Common forms of effecting debility include the use of isolation, sleep deprivation, diet reduction, lack of access to needed medical procedures, stress positions, and sensory overload or deprivation -- all of which have been practiced at Guantanamo and other sites in Bush's "war on terror" prisons.
Dread is self-explanatory: it means making prisoners afraid, and the use of phobias and fear of the worst happening are two ways to produce this. (For instance, inducing fear of waterboarding is much more efficient than using waterboarding itself.) By dependency, the torturers mean producing a state where, as the CIA once put it:
Prisoners "... have reduced viability, are helplessly dependent on their captors for the satisfaction of their many basic needs, and experience the emotional and motivational reactions of intense fear and anxiety.... Among the [American] POW's pressured by the Chinese Communists, the DDD syndrome in its full-blown form constituted a state of discomfort that was well-nigh intolerable."We might call this a smashing of hope in the prisoners' mind, an acceptance that his or her entire fate, his life, perhaps the lives of his or her family, rests with the incarcerating power.
If you allow prisoners the right to petition a court for their freedom, and to challenge the tyrannical exercise of executive authority, then you reduce the sense of total dependency that the torturers intend to perpetuate in their victims. This is why you hear the squealing from the apologists for U.S. torture, from right-wingers on the Supreme Court, to ostensible "moderate" on torture John McCain, who was tortured himself once, long, long ago. McCain has made an identification with the torturers of his own government, and this is not in itself so unusual, from a psychological point of view.
The particular reason for McCain's apostasy on torture is unknown to us -- perhaps it's guilt for talking under torture back in Vietnam, perhaps it's pure ambition and opportunism -- but one thing is certain, his current posture is anathema to anyone who opposes the use of torture and attacks on civil liberties, not to mention a militarist agenda that blithely suggests a war lasting for 100 years or more.
Make Torture a Central Issue
As much as Obama and his supporters like to keep the campaign against torture as something rolled out for special speeches and the like -- you won't find a word about torture by the Bush administration at Obama's campaign website -- the fight against torture is at the center of the struggle against Bush's war drive abroad and attack on civil liberties at home. Guantanamo's prison, which sits on a leased piece of land in Cuba, is a toehold for fascistic policies of torture and suspended civil rights to be implemented in the United States if and when the government deems it necessary. Already, the U.S. Naval Brig at Charleston, South Carolina has been the site of inhumane torture practices against U.S. citizen Jose Padilla.
The rhetoric is heating up. Bush and his backers fear that their untrammelled campaign projecting U.S. military power and influence abroad is threatened by the upcoming elections. They are desperate and will do anything to paint their opponents as traitors and criminally negligent adventurers. The miserable economy may make it impossible to effectively spread their message, but I wouldn't be too sure. The Democratic Party had best consider taking on the jingoistic, yellow journalism rhetoric of the right, if it is serious about defeating the right-wing agenda in this country.
Were the last, best defenders of democratic rights in this country five relatively old judges and a handful of constitutional attorneys? I know a lot of money is flowing into Obama's campaign coffers now, but that won't necessarily be enough to defeat Bush and Cheney's heir apparent. And even if McCain goes down in flames, a much bigger obstacle lies ahead for progressives in this country in the form of the myriad connections and influence of energy, technology, financial, information and military industries with the institutions of the army, navy, air force, and intelligence agencies... a tremendously larger obstacle.
1 Magna Carta, quoted in Boumediene et al. v Bush, Justice Kennedy's Opinion, p. 9
2 John McCain, GOP presumptive nominee for President, at a speech in New Jersey, commenting upon the Boumediene v Bush ruling, in "McCain Condemns Supreme Court Guantanamo Ruling", Wall Street Journal, June 13, 2008
3 U.S. Constitution, Article 1, Section 9, Clause 2
4 Boumediene et al. v Bush, Syllabus [of Majority Decision], p. 8
5 Editorial, Wall Street Journal, June 13, 2008
6 Boumediene et al. v Bush, Dissent by Justice A. Scalia, p. 2