Revision Update: US Politics: Rights and the War on Terror

The continuation of the usurpation of rights due to the “War on Terror”Despite the regime change at home with the election of President Obama in 2008, there has been scant sign of any relaxation of the government controls designed to improve national security. Indeed many would argue that they continue to be undermined by:Secret surveillance of US citizens has been increased by the National Security Agency.More government documents have been classified. In 2011 these amounted to 92m compared to 76m in 2010.Whistle-blowers have faced a government crackdown with increased use of the obscure Espionage Act which dates from World War I.Congress sanctioned an extension of phone tapping without a warrant until 2017.Prosecutions by military tribunals rather than civilian courts.The continuation use of renditions by the CIA and the failure to close Guantánamo Bay detention centre which it is argued amounts to “the fundamental civil liberties issue of our time.”[1]An expanded definition of a terrorist without recourse to the legal process (National Defense Authorization Act 2012).The detention of suspected terrorists at Guatánamo Bay (GITMO) and developments since 9/11such as the Patriot Act, provide an interesting case study of the how rights may be subject to abuse and of the roles played by various political institutions.With regard to the rights that are “in play” with regard to the detention of these prisoners, these include:Habeas corpus rightsThe right to a fair trialThe right to a lawyerFreedom from tortureUnder the terms of the US Constitution, the 6th, 7th and 8th amendments would seem to have been disregarded.In order to aid analysis of the roles played by the three branches of government, the following sections look at each branch in turn.

THE PRESIDENCY

The presidency has a key role to play in protecting rights and liberties in his capacity as “legislator in chief”. The president can propose Congress adopts certain pieces of legislation and use his position to help ensure their passage. Given the lack of leadership and party unity in the Congress, the presidency can play a vital role in this regard. The present issue of gun control provides a case in point. From a rights perspective, it could be argued that President Obama is using the “bully pulpit” of the presidency to restrict the right to bear arms.

President Bush argued that those held were not prisoners of war but enemy combatants. If they were classed as the former, they would have been subject to treatment as established under the Geneva Convention.

President Obama pledged to close the camp during the 2008 presidential campaign and when he elected he signed an executive order for the camp to be closed within a year.

President Obama signed the Defense Authorization Bill (see below) but pledged to repeal it. He made a similar commitment with regard to Congress’ refusal to allocate funds in 2011.

President Obama has authorised the use of military trials and continued detention without trial in an attempt to speed up the process of dealing with those held.

With regard to prisoners being held on Guantánamo, it would be fair to say that President Obama’s attempts to close the prison have been thwarted by the Congress.

Water-boarding and other “enhanced interrogation techniques” were used on Al Qaeda suspects although President Bush issued an executive order banning the use of torture in 2007. There was a question though of whether water-boarding amounted to torture. Vice President Cheney has claimed that the technique had produced several key pieces of intelligence.

Congress passed a bill in 2008 that banned waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for Fiscal Year 2008. President Bush vetoed the legislation. His veto applied to the authorization for the entire intelligence budget for the 2008 fiscal year, but he cited the waterboarding ban as the reason for the veto. Supporters of the bill lacked enough votes to overturn the veto.

President Obama also banned the use of torture when elected in 2009. Unlike the Bush administration though, there was no semantic wordplay as to what constitutes torture. President Obama was clear this included the use of waterboarding.

On the other hand though, President Obama signed an extension of the Patriot Act in 2011 (see the section on Congress) which suggests that he has less concern with regard to privacy rights and the fourth amendment.

Similar concerns were raised when President Obama approved the National Defense Authorisation Act 2012.The act allows US citizens to be detained indefinitely without charge or trial. The Obama administration even went as far as successfully seeking to overturn a lower court decision that granted a permanent injunction against that part of the bill. Critics suggest that the act is similar to the internment (detention without trial ) of Japanese Americans during World War II.(Korematsu v US 1944)

THE LEGISLATURE

With a Republican Congress after the midterms of 2002, President Bush had a willing partner in securing the continued detention trial of those held on GITMO.

Congress passed the Military Commissions Act 2006 which established military tribunals to determine enemy combatant status without using civilian courts.

Similarly, the Defense Authorization Bill 2011and 2012 prevent the transfer of Guantánamo prisoners to prisons on the mainland and to other foreign countries.

These restrictions were further enhanced when Congress used the “power of the purse” to insist that no federal funds be used for such transfers.

As mentioned above, it would seem that it has been the legislature rather than the executive, the Congress rather than the president, which has failed to respect the rights of those held on Guatánamo.

In 2011, Congress passed a four year extension of the Patriot Act. The act contains sweeping powers relating to surveillance. The ACLU objected to:

1. Investigations without showing reasonable suspicion to obtain a warrant.

2. Similarly warrantless wiretaps do not identify the person or the facility to be tapped.

3. The “Lone Wolf” provision of the Intelligence Reform and Terrorism Act 2004 allows secret supervision of non-US persons who are not affiliated with a foreign organisation.

4. National Security Letters (NSLs) allow the government to obtain communication, financial and credit records of anyone deemed relevant to a terrorist investigation.

When the act was first passed in 2001, it was rushed through the Congress achieving votes of:

357 - 66 in the House of Representatives and 98 -1 in the Senate

Most had not read the bill. The bill was renewed in 2005 and 2011 and is due to expire in 2015.

THE JUDICIARY

The Supreme Court ruled however in Hamdi v Rumsfeld 2004 that there was a need to establish whether those held were enemy combatants.

Similarly in Hamdan v Rumsfeld 2006 the Court held that the tribunals established to determine enemy combatant status were also invalid.

Boumediene v Bush 2008 established the fact that those held on Guantánamo were entitled to the protection of the US Constitution.

The Supreme Court though has not ruled on the Patriot Act. This can be explained by the facts that;

1. As an appellate court, it must wait for cases to come before it. As yet no part of the Act has been successfully challenged in a lower court.

2. Previous rulings such as US v Katz 1967 have limited applicability and were not related to issues of national security.

3. The Constitution does charge the federal government with the task of providing for the common defence of the nation.

The Supreme Court also failed to support the plaintiffs opposed to the National Defense Authorisation Act 2012 in Hedges v Obama 2013. This means that indefinite detention of US citizens without trial is a possibility and there are also concerns about first amendment free speech rights as the act is vague about what constitutes giving support to Al Qaeda.

PRESSURE GROUPS

It would seem that the president as commander in chief and the legislature may be tempted to place national security above individual human rights. It then falls upon the judiciary to ensure that rights outlined in the bill of rights are applied.

In the same vein, pressure groups lead the way with regard to the close scrutiny of government. With regard to the treatment of prisoners at GITMO, three main pressure groups have been to the fore:

1. The American Civil Liberties Union

2. Human Rights Watch

3. Amnesty International

Pressure groups have a vital role to play as alone the three branches of government may be unable to offer an adequate protection of rights of liberties. As James Madison one of the Founding Fathers declared “If men were angels, no government would be necessary”, however it would seem that government too needs to be checked.

SUMMARY

The existence of a bill of rights does not mean that it will necessary be enforced. Segregation provides a clear illustration of this point from the recent past in the USA. The fact also remains that despite the Boumediene ruling above; many prisoners still remain on Guantánamo with no prospect of release.

GITMO: TODAY

As of January 2013:

· There were 166 prisoners on GITMO,

· 3 of whom were serving sentences after military commissions.

· 86 of these prisoners were cleared for release by the government in 2009.

· The USA claims that it lacks the evidence to prosecute 46 of those held but that they are too dangerous to be released.

· According to the government 92% of those held were never Al Qaeda fighters

· The youngest prisoner held was aged 13, the eldest 98

· Only 5% were captured by US troops, the rest were handed over for money paid by the USA.

· Only 1 prisoner had been transferred for prosecution in a federal court.

There has been a hunger strike recently with estimates as high as 130 of the 166 held refusing to eat. Some are being force fed. These prisoners have been held for more than a decade with no end in sight to their plight. Can you imagine the despair of the 86 who have been cleared for release still to find that no country is willing to accept them? There have been a number of suicides in the prison.

It would seem that when the situation arises, the government is able to ignore individual liberties. Rights may exist and commitments might be made to international treaties and organisations such as the Geneva Conventions and the United Nations Declaration of Human Rights, however, governments it would seem may choose to ignore these when it so chooses. It could be argued that the rights are nothing more than “paper rights” in that they exist on paper but they are not enforced in practice.

Clearly events such as 9/11, the Oklahoma bombing and the Boston marathon bombs help create a climate in which a climate of fear can (legitimately?) prevail which may see civil liberties drastically curtailed.

Given these circumstances, the old adage of

"Eternal vigilance is the price of liberty." (Wendell Phillips)

would seem to ring true. In order to secure an adequate protection of rights and liberties, there is a need to create a rights culture in which rights are respected by all and that all branches of the government, the public, pressure groups and the media, work either together or independently in order to ensure rights are not violated.

One parting thought from the sage of the American Revolution