The More Things Change...

Last week, the Supreme Court made a landmark ruling that put at front and center an issue that often gets overlooked in this ‘war.’ In a 5-4 decision, the Court decided that Guantanamo Bay detainees are entitled to trials in U.S. civilian courts to contest being detained indefinitely without charges. In the previous posts, we’ve been looking at human rights and physical abuse, but a discussion of another type of rights—legal rights—must not be left out of any analysis of this war’s injustices, and the Court’s ruling on Thursday, June 12, makes such a discussion even timelier. While this subject may not get as much attention as the physical abuse scandals, constitutional rights have been just as much under attack when it comes to the so-called war on terror. When the Detainee Interrogation Bill was passed in September 2006 and signed into law as the Military Commissions Act that October, it stipulated that those considered as enemy combatants could be held indefinitely without a chance for appeal, and habeas corpus—the right to contest incarceration—was not extended to detainees. And while the Court’s recent decision effectively overturns that stipulation of the Act, the controversy over the constitutionality of such policies has not ended. But as we keep reiterating, we’ve seen this all before. The same questions about the rule of law and infringement on rights have been raised in the past. We only need to turn to our ally, Britain, and look at its experience as one of the most powerful empires in history.

One illustrative and infamous episode from Britain’s imperial history is the Amritsar massacre of April 13, 1919 in India. The incident began when civilians were meeting against colonial orders which prohibited congregating. British General Dyer ordered troops to fire on the non-militant crowd, resulting in at least 379 deaths and more than a thousand more injuries. Martial law was then instituted days after the massacre, and this included degrading punishments such as public beatings and even requiring all people passing through a certain road to crawl on their hands and knees. After the event, physical coercion was often used to force witnesses to make false statements, and as we discussed in the last post, many acknowledge that similar coercive practices are currently being used during interrogations in US detention centers.

In an article on the Amritsar event, author Derek Sayer concludes that “martial law, declared after the major disturbances had been put down, served to facilitate punishment rather than to control disorder. There was scant regard for the hallowed principles of British justice.” Yet “British justice” had already been abandoned in the month leading up to this massacre when the Rowlatt Bills were passed —a point of contention among Indian subjects. The bills “provided for the trial of political offenders by three High Court judges, with no jury or right of appeal…The executive was empowered to arrest, search without warrant and confine suspects without trial for renewable periods of up to a year.” By comparison, the 2006 US bill mentioned above had provisions that “give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them...” as a New York Times editorial sums it up. Maybe it’s just me, but that description of the US Detainee Interrogation Bill sounds awfully similar to the Rowlatt Bills in British India.

In yet another British colony several decades earlier, similar disregard for constitutional rights of colonial subjects also became standard policy. During the1865 riots in Jamaica while martial law had been instituted for thirty days even though rioting had long ended in the first few days, British officers led by Governor Eyre killed and tortured hundreds of Jamaican blacks, including parliament member George William Gordon. Eyre transferred Gordon from Kingston, which was not under martial law, to Morant Bay where it was in place in order to be killed. Again, the US has similarly been sending terror suspects to other countries that lack the fundamental protections awarded people under US law or that are even known to practice torture. That’s basically what the U.S. has been attempting to do for the past nearly 7 years, by keeping so-called “enemy combatants” in Guantanamo Bay, Cuba. In a more extreme example, a German man named Khaled el-Masri says he was kidnapped by CIA agents who drugged him, beat and stripped him, put him in a diaper and shackled him to a plane floor to ship him to Afghanistan for four to five months. Germany’s interior minister was reportedly even advised by the US not to discuss the case, because, as the US claimed, doing so may have revealed information about “extraordinary rendition,” a secret US program of catching suspects of terrorism and sending them abroad to be interrogated. El-Masri’s lawsuit against the US was also dismissed by the Supreme Court on the grounds that it would reveal state secrets. Such a practice of holding terror suspects abroad and under foreign jurisdiction has raised concerns amongst many, including the United Nations Committee Against Torture.

Back to Jamaica in 1865, the notorious episode after the riot led to a prolonged investigation and trial that at the time polarized Britain over what qualifies as injustice, in particular, whether martial law belonged in the British system at all. Some believed that constitutional rights only applied in settled British colonies rather than conquered ones while others were of the position that, “…through our empire the British rule shall be the rule of law; that every British citizen, white, brown, or black in skin, shall be subject to definite, and not indefinite powers.” Judging from our recent record under the Bush administration, I guess America prefers having indefinite powers, and it seems as if the Bush administration has no problem ignoring the rule of law, whether it be inside or outside the United States.

But we need only look back to our very own war for independence and the disregard for rights shown by our British cousins back then. Habeas corpus was suspended for Americans then as it has been for detainees of the US war on terror until now, and British parliament member Edmund Burke openly opposed such policies and Britain’s role in the Revolutionary War itself, asserting that “we have forgotten or thrown away our ancient principles.” As former victims of rights violations, you’d think that we’d try to avoid perpetrating such injustices ourselves, but it seems like we’re still adding to the trash pile of principles.

Now, these few historical cases are just the tip of the iceberg as they say, only a representative sample from my limited knowledge, and I’m sure many of you can point to lots of other cases of the rule of law being selectively abandoned by governments that are supposedly rooted in it. But the fact of the matter is, we’re seeing it again despite previous warnings. Although martial law has not officially been instituted by the US with regards to terrorism, it has effectively been in place with all the legislation and secret prisons that deny many Arabs and even U.S. citizens the legal rights that are supposedly the foundation of our country, such as the assumption that one is innocent until proven guilty. Case in point, although the Supreme Court had already made two decisions prior to last Thursday’s which allowed Guantanamo Bay detainees being held without charges to appeal to civilian courts, the administration and the then Republican-dominated Congress altered the laws in order to prevent court trials for the detainees. And Bush has already expressed his disapproval of the Supreme Court’s decision Thursday. It seems as if we haven’t heeded the advice from our predecessors like Burke, and instead have chosen the footsteps of the British imperialists.

While some argue that certain exceptional circumstances like war warrant revoking the rule of law, even considering such situations, I think it’s clear to everyone when such disregard for the law and legal rights has gone beyond its intended purposes—as the scholars have noted in the Amritsar and Jamaica situations and as Justice Kennedy has acknowledged in the case of our current war with his declaration that “The laws and the Constitution are designed to survive, and remain in force, in extraordinary times.” Had it not been for the Supreme Court’s decision Thursday, I would have ended this post by saying, “Perhaps, as historians have typically done, we’ll also have to wait another hundred years or so before we begin to analyze, realize, and criticize our current war policies. But why should we wait?” But I think the Supreme Court beat me to the punch, so instead, I’ll end with a quote from the Executive Director of the Center for Constitutional Rights Vincent Warren: “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices…By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.” Let’s hope so.

Sources:

Associated Press, “Supreme Court Backs Gitmo Detainees,” 12 June 2008, http://www.msnbc.msn.com/id/25117953/

Associated Press, "Court Nixes Suit Claiming CIA Torture," October 9, 2007, http://www.msnbc.msn.com/id/21205942.

Associated Press, "Report: CIA Wrongly Jailed German," The Real World News in Brief, The Harvard Crimson, December 5, 2005.

“Military Commissions Act of 2006,” Wikipedia, http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006, (accessed 16 June 2008).

“Rushing Off a Cliff,” New York Times Editorial, September 28, 2006.

Derek Sayer, “British Reaction to the Amritsar Massacre 1919-1920,” Past and Present, (No. 131): 130-164

Bernard Semmel, Democracy Versus Empire: The Jamaica Riots of 1865 and the Governor Eyre Controversy, Garden City, New York: Anchor Books Doubleday and Company, Inc., 1969

Tom Wright, “U.S. delegation faces UN panel: Committee Against Torture listens skeptically to explanations” International Herald Tribune May 6, 2006 http://www.iht.com/articles/2006/05/05/news/geneva.php?page=1