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Victoria Brittain: Miscarriages of Justice

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Sometimes, when you watch the strange, repetitive political dance that swirls around the U.S. prison in Guantanamo Bay, Cuba -- the president announcing yet again that he plans to "close" it and the Republicans in Congress swearing that they won't let him -- it's hard not to wonder what alternative universe we live in.  The initial round of this began on the day Barack Obama entered the Oval Office and circulated an executive order meant to close that prison within a year.  The latest presidential "closing" announcement came just over two weeks ago.  In a major speech at National Defense University, Obama also claimed that he would soon lift restrictions he had imposed in 2009 on sending Guantanamo prisoners long cleared of any criminal activities back to Yemen.  Just last week, Congressional Republicans offered the usual reply.  They proposed to keep the prison open, whatever the president wanted, "by barring the administration from transferring its terror suspects to the United States or a foreign country such as Yemen."

By now everyone knows that Guantanamo can't be closed, not by this administration or any other one imaginable.  At present, it is the scene of an extraordinary protest movement, now almost three months old, by 103 prisoners using potential death by starvation to bring attention to the nightmare that has been their lives behind bars in Cuba.

More than 11 years after its founding, Guantanamo looks to Americans ever more like an offshore aberration, the last of the walking dead that just won't go down.  As it happens, though, that institution is anything but an aberration.  It's exactly what it was meant to be.  The Bush administration situated it just off the coast of Florida in the first place because it wanted to avoid legality, justice, and the reach of U.S. courts.  It's true that George W. Bush's top officials made a fetish out of giving illegality -- including global kidnapping operations, torture interrogations, and a global string of "black sites" -- a feel-good veneer of legalism.  That was why, for instance, the Department of Justice produced those infamous "torture memos" that, among other remarkable things, managed to put the legal definition of torture in the hands and mind of the torturer.  But the goal of the president, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and other key officials -- some of whom reportedly had torture techniques demonstrated for them in the White House -- had everything to do with leaving legality behind.

In 2001, they were eager above all to "take the gloves off."  They wanted to be able to do anything they cared to do on their self-proclaimed "global battlefield."  They wanted to lay hands -- not theirs, admittedly, but delegated ones -- as violently as possible on the prisoners swept up there: the worst of the worst, minor footsoldiers of al-Qaeda or the Taliban, people who simply had enemies who betrayed them, and the innocent who wandered into or were trapped in this hell. It didn't matter.  They weren't into making distinctions or charging prisoners with crimes or anything so banal.  What they wanted was control, total control, over the bodies of their enemies.  It wasn't a nice thing.  It wasn't a pretty thing.  It wasn't the sort of thing you said in polite company or (most of the time) in the media, which, in one of the small linguistic scandals of the era took to replacing the simple, easy to define word "torture" with the administration's euphemistic phrase "enhanced interrogation techniques." 

They wanted to revel in their power and their glory in the Greater Middle East, but also in the dark corners of those black sites and in that jewel-in-the-crown of offshore injustice, Guantanamo. They were proud of their Cuban prison.  They meant it to be a way of life and now, of course, no one can get rid of it.  It's not possible.  The Obama method of "closing" it means transferring to a supermax prison on U.S. soil up to 50 prisoners that top American officials believe to be guilty of something, but can't bring to trial, largely because "confessions" were taken from them by the dirtiest possible methods that won't hold up in any court of law.  Even this, however, wouldn't close Guantanamo.  It would simply embed its methodology in the heart of the U.S. prison and judicial system (which is why such a plan has sarcastically been dubbed "Gitmo North").

In fact, in certain ways, like so many ugly things that wars bring home, aspects of what might be called the Guantanamo Syndrome have already crept deep into our American world, whether Congress approves or not.  As Victoria Brittain, author of Shadow Lives: The Forgotten Women of the War on Terror, makes clear in her latest TomDispatch post, pre-punishment and pre-conviction, Guantanamo-style, are increasingly everyday by-products of the war on terror at home. Tom

Guilty Until Proven Innocent
<How to Pre-Convict and Pre-Punish an American Muslim
By Victoria Brittain

A four-month hunger strike, mass force-feedings, and widespread media coverage have at last brought Guantanamo, the notorious offshore prison set up by the Bush administration early in 2002, back into American consciousness. Prominent voices are finally calling on President Obama to close it down and send home scores of prisoners who, years ago, were cleared of wrongdoing.

Still unnoticed and out of the news, however, is a comparable situation in the U.S. itself, involving a pattern of controversial terrorism trials that result in devastating prison sentences involving the harshest forms of solitary confinement.  This growing body of prisoners is made up of Muslim men, including some formerly well-known and respected American citizens.

At the heart of these cases is a statute from the time of the Clinton presidency making it a crime to provide "material support" to any foreign organization the government has designated as "terrorist."  This material support provision was broadened in the USA PATRIOT Act, passed by Congress just after the 9/11 attacks, and has been upheld by a 2010 Supreme Court ruling in the case of Holder v. Humanitarian Law Project.  Today, almost any kind of support, including humanitarian aid, training, expert advice, "services" of all sorts, or "political advocacy" undertaken in "coordination" with any group on the State Department's terrorist list, can lead to such a terror trial. The Court has never defined what "coordination" actually means.

In that Supreme Court ruling, Justice Stephen Breyer was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Breyer proposed a narrower interpretation of material support: individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence. At the time, the position of the dissenting judges was backed by key editorials in major newspapers.  In the three years since, however, more material support cases have resulted in long sentences with very little public notice or critical comment.

Pre-Trial Punishment

In the U.S. these days, the very word "terror," no less the charge of material support for it, invariably shuts down rather than opens any conversation.  Nonetheless, a decade of researching a number of serious alleged terrorism cases on both side of the Atlantic, working alongside some extraordinary human rights lawyers, and listening to Muslim women in Great Britain and the U.S. whose lives were transformed by the imprisonment of a husband, father, or brother has given me a different perspective on such cases.

Perhaps most illuminating in them is the repeated use of what's called "special administrative measures" to create a particularly isolating and punitive atmosphere for many of those charged with such crimes, those convicted of them, and even for their relatives.  While these efforts have come fully into their own in the post-9/11 era, they were drawn from a pre-9/11 paradigm.  Between the material support statute and those special administrative measures, it has become possible for the government to pre-convict and in many cases pre-punish a small set of Muslim men.

Take the case of Ahmed Abu Ali, a young Palestinian-American who is now serving life in the Administrative Maximum Facility, a supermax prison in Florence, Colorado, and is currently under special administrative measures that restrict his communications with the outside world. A university student in Saudi Arabia, he was arrested in 2003 by the Saudi government and held for 20 months without charges or access to a lawyer. The Washington Post reported that the U.S. government finally asked for his return just as his family filed a lawsuit in Washington.

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Tom Engelhardt, who runs the Nation Institute's ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)

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