The New Invisibility and US Desaparicidos

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IRAQ WAR CULTURE REVIEW. As the Bush administration exercises its inventiveness to create and rationalize new modes of global policing, the politics of invisibility within this menacing Leviathan extend themselves and demand that its practices — not the prisoners — become the object of legal protection. Occasional witness testimonies, photographs, and documents may emerge, but this is an invisibility based on establishing a durable partition between state and public knowledge.

America’s Disappeared: Secret Imprisonment, Detainees, and the ‘War on Terror’
Rachel Meeropol, ed.

Reviewed by Joe Lockard

Indefinite detentions without trial, ‘stress and duress’ torture in secret confinement cells, and fly-by-night ‘renditions’ with chartered jets carrying anonymous prisoners to far points of the globe have become part of the post-9/11 underground government culture. It is remarkable yet little remarked that the New York Times runs an editorial entitled “Binding the Hands of Torturers” (October 8, 2005) defending legislation to outlaw torture in US military prison camps and observes that “Not only is the Bush administration trying to block the Senate’s efforts to finally fix this enormous problem, but it continues to block any serious investigation of the abuse, torture and murder of prisoners.” It requires serious naiveté to believe that the Bush administration’s current argument that the Convention Against Torture does not apply to foreigners held outside the United States represents a hypothetical situation rather than current practice. The administration’s threat to veto the entire defense appropriation bill over this anti-torture rider testifies to their understanding of such practices as irreplaceable elements of interrogation and detention.

It is at such points where the underground world rises above ground, seeking legitimization; official rule-of-law pretenses drop and a Hobbesian primal scene comes into view. The Leviathan is most alive at its ugliest public moments, those where the brutal message is a warning to citizens to behave so as to remain far from these scenes of violence enacted in the name of a benevolent and protective state. Citizens learn that citizenship provides limited protection, and non-citizens understand their complete vulnerability. As the Bush administration exercises its inventiveness to create and rationalize new modes of global policing, the politics of invisibility within this menacing Leviathan extend themselves and demand that its practices — not the prisoners — become the object of legal protection. Occasional witness testimonies, photographs, and documents may emerge, but this is an invisibility based on establishing a durable partition between state and public knowledge. The underground police and detention system cannot fulfill their vocation in a fundamentally transparent legal system. These alterations in protections extended by legal transparency are not limited to the United States. In Britain, the Blair government is in the midst of extending the current time limit of 14 days custody without charges to 90 days, despite splits among its own ministers over the new anti-terrorism bill. Once it was Britain’s much-copied Emergency Regulations that provided the model for depriving colonial subjects of legal rights; today the dominant model originates in the United States and directs itself towards the coordination of a global legal network that supplies on-demand invisibility.

Facing this fundamental transformation of international security and detention systems, accompanied by massive expansion of newly-interlocking state security bureaucracies, the opposition appears slim by comparison. Civil rights law practice is a much-belated or unavailable remedy for most subjects caught up in this New Invisibility. By turning legal searchlights onto the US and global detention underground, the Center for Constitutional Rights, in New York City, has been one of the most active centers in the work of social illumination. Four of the five analytic essays in America’s Disappeared were contributed by attorneys affiliated with the Center. The volume covers the legal situation of Guantánamo prisoners; the use of torture and rendition as counter-terrorism tools; the Abu Ghraib cases; and the intersection of post-9/11 immigration and terrorism cases. First-person accounts of prisoners have been interspersed between these chapters. America’s Disappeared is an informal guide to law, experienced and practiced, in this new subterranean global geography.

The book contains testimonies from some better-known former prisoners, such as Shafiq Rasul and Asif Iqbal, British citizens who were held without charges or discernable cause at Guantánamo, which make clear that the practices of Abu Ghraib were widespread. Short-shackling, sensory deprivation, physical stripping, threatening dogs, and beatings were used against inmates. Rasul and Iqbal were released due to an MI5 investigation that proved their alibis and due to British government pressure, but as attorney and Center director Michael Ratner observes, as many as an estimated fifth of Guantánamo detainees may be innocent bystanders without access to either due process or means to prove their innocence. Maher Arar, a Canadian citizen and engineer detained by the United States at JFK airport in New York, while in transit from Tunisia via Switzerland to Canada, provides a statement of his rendition to Syria despite ceaseless protests that he would be tortured there. Between September 2002 and December 2003 Arar was tortured in a Syrian prison, mostly being whipped with a cable, until he agreed to sign a false confession that he had received military training in an al-Qaeda camp in Afghanistan. For over six months he stayed in a 3x6-foot dark cell, a living grave. Again, the Canadian government was able to effect his release, but only a very small number of such detainees under torture have rights-conscious western governments and middle-class families to intercede in their behalf. Indeed, if international human rights norms prevailed, why should one Caesar contest with another Caesar for humane treatment of subjects imprisoned without trial?

It is more difficult to make persuasive linkages between such false-charge security cases and immigration deportation cases, but Rachel Meeropol tries in an essay entitled “The Post 9/11 Terrorism Investigation and Immigrant Detention.” She argues that “Buttressed by draconian legislation and anti-immigrant discrimination, the US system of immigration detention has become a tool of repression wielded at the will of the executive and sheltered from meaningful scrutiny by the judiciary.” Much of the essay is off-point from this argument, so Meeropol is less than successful even as she identifies an important ‘homeland security’ ideological nexus that conflates threats from al-Qaeda terrorists and economic migrants. Moreover, one of the problems with Meeropol’s essay lies in its implicit acquiescence to repeated right-wing equations of 9/11-style terrorists and hard-working, impoverished immigrants seeking an opportunity. The demonization of ‘illegal aliens’ as an intrinsic threat to American nationhood has become one of the most offensive hallmarks of the New Invisibility. The political question as framed by US right-wing politics has become how to make undocumented immigrants disappear from the body public. Some of the legal abuses – particularly lengthy detentions under poor conditions, with denial of legal representation – employed towards this end arise from the temptation of state bureaucracy to make a problem ‘disappear’ through confinement and deportation.

Barbara Olshansky concludes the volume with a lengthy essay that reviews the cases of Jose Padilla and Yasser Hamdi in order to outline that aggrandizement of legal powers that the Bush administration has pursued. The use of ‘enemy combatant’ designation has functioned to create a new class subject to administrative fiat, one not afforded either international protections afforded combatants, whether lawful or unlawful, or domestic protections afforded US citizens who are to be either charged with crimes or released. Padilla and Hamdi are living in a legal status defined only by the Bush administration’s desire to have all powers it demands to conduct war against al-Qaeda. However, the Bush administration’s attorneys have handed al-Qaeda one of its most significant achievements through the diminution of constitutional protections. This is the same abuse as Justice Stevens condemned in Padilla v. Rumsfeld (2004), writing “Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber” and calling for a legal system that refuses to “wield the tools of tyrants even to resist an assault by the forces of tyranny.”

Olshansky’s essay reads like a passionate brief in defense of civil liberties, which it is, but hers is also an absolutist position that cannot afford to acknowledge any boundaries to its argument. Discussing the Padilla case, for example, she indulges the hyperbole that the arbitrary and indefinite detention of an American citizen “is one of the most drastic steps in our nation’s history.” In fact, these were the same means Lincoln employed to suppress pro-Southern sentiment in northern and border states. Olshansky paradoxically echoes Copperhead leader Clement Vallandigham’s bitter protests over suspension of habeas corpus (an ex-congressman, Vallandigham eventually was expelled to Confederate lines and spent the last year of the war in forced exile in Canada, from where he received the Democratic nomination for governor and lost heavily in the election). She concludes by citing with approval Chief Justice Roger Taney’s futile protest in Ex parte Merryman that neither the president nor the president’s officers could be permitted any exception that would allow such suspension. That case involved the US Army’s seizure and detention of John Merryman, a Maryland resident who recruited and officered a company of pro-Confederate militia, and the military’s refusal to honor the Chief Justice’s writ of habeas corpus. Taney, of course, was a white supremacist and Southern sympathizer who shared the pro-slavery beliefs of detainees who supported disunion and the Confederacy. Lincoln ignored Taney and the Supreme Court; his administration arrested and held some 13,000 US citizens for trial by military tribunals or no trial at all. When the court ruled once again in 1866 at Ex parte Milligan against suspension of habeas corpus, the war was finished and their opinion had little practical effect. The Padilla case, while significant today, remains miniscule by historical comparison.

To re-phrase the point, however, given a history where generations of Africans were captured, transported, and detained for generations, and in the context of prosecuting a war that would bring their emancipation, was it an abuse of executive power to arrest pro-Southern and pro-slavery speakers, even to try them for treason before military commissions and execute them? A response affirming the necessity of that executive decision would be the one that considered the right of slaves to emancipation and, to preserve the instrument of attaining their freedom, the pressing need for the Union to suppress pro-Confederate agitation. When Frank J. Williams, chief justice of the Rhode Island supreme court and a major general sitting on the Military Commissions review panel, in a 2004 article in the New York University Annual Survey of American Law appropriated Lincoln to defend Bush administration policy, he did so with a vacuous ‘defense of democracy’ comparison. The unsatisfactory nature of such comparisons arises from absent contextual specificity: democracy lies in the specifics of individual and class realizations of equality, not in amorphous rhetorical invocations.

Since the history of black slavery in the United States runs so deep, reading out race from the exercise of habeas corpus claims underlines how this right has been treated as a form of white privilege. Millions of black slaves never got to file such a writ: the Civil War was their effective habeas corpus. So if one endorses Lincoln’s decision as necessary in order to preserve the Union and defeat slavery, then it follows that there exist conceivable circumstances for suspension of habeas corpus. This is not a possibility that Olshansky appears to consider or would likely entertain. Thus Olshansky finds herself in the unanticipated, uncomfortable company of neo-Confederate historians, who condemn Lincoln as a tyrant for precisely this alleged abuse of executive power. Ironically, where human rights-centered politics manifest an absolutist refusal to contextualize rights, they can end by condemning any contextualization of those rights. Stripping historical context means that a case such as McArdle, a Reconstruction-era case of a white Mississippi editor who was arrested by military authorities for newspaper articles calling for resistance to federal ‘occupation’ and who filed for habeas corpus, comes to be treated as only a free-speech issue rather than a prelude to the successful re-establishment of white supremacy, Ku Klux Klan terror campaigns, and Jim Crow’s exclusion of blacks from citizenship and government.

The point is that the legal ethics involved in suspension or abridgement of civil rights are not absolute, as Olshansky argues, and that all-or-nothing universal formulations do not respond adequately to historical contexts. Stating this does not excuse the Bush administration for its prolonged assault against civil liberties, but does acknowledge the possibility that a balancing test, albeit one heavily weighted against over-reaching executive branch claims, can be constructed as a means of social self-defense against the demonstrated capacities of advocates of mass violence.

This, however, is only a hole in an over-broad argument. The current reality lies in the legal abuses of the Bush administration and its plans to expand infringement of civil liberties under cover of the ‘War on Terror.’ The New Invisibility and its growing, intimidating set of subterranean state security institutions have created grave damage against the rule of law in the United States.

Joe Lockard is assistant professor of English at Arizona State University.

Published by Seven Stories Press

Copyright © 2005 by Joe Lockard. All rights reserved.

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