A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency (39 page)

It is worth noting that throughout his captivity, none of the restrictive and inhumane conditions visited upon Mr. Padilla were brought on by his behavior or by any actions on his part. There were no incidents of Mr. Padilla violating any regulation of the Naval Brig or taking any aggressive action towards any of his captors. Mr. Padilla has always been peaceful and compliant with his captors. He was, and remains to the time of this filing, docile and resigned—a model detainee….

In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel and some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish.

It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course of almost the entire three years and seven months of his captivity in the Naval Brig. For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.

The case of José Padilla is one of the most despicable and outright un-American travesties the U.S. government has perpetrated for a long time. It is impossible to defend that behavior, let alone engage in it, while claiming with any legitimacy that one believes in the principles that have defined and guided this country since its founding. But there has been no retreat from this conduct. Quite the contrary, the legislative atrocity known as the Military Commissions Act of 2006 is a huge leap toward elevating the Padilla treatment from the lawless shadows into full-fledged, officially sanctioned, and legally authorized policy of the U.S. government. The case of José Padilla is no longer a vile aberration, but is instead emblematic of the kind of government we have chosen to have under the Bush presidency, justified by our war for Good.

These abuses are hardly confined to the case of Padilla. The Bush administration’s treatment of Ali Saleh Kahlah al-Marri also ought to be shocking and horrifying. Instead, it is now not only depressingly familiar but also formally sanctioned by the U.S. Congress.

In 2001, al-Marri, a citizen of Qatar, was in the United States legally on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children.

In December 2001, he was detained as a “material witness” to suspected acts of terrorism and ultimately charged with various terrorism-related offenses, mostly relating to false statements the FBI claimed he had made as part of its 9/11 investigation. Al-Marri vehemently denied the charges, and after lengthy pretrial proceedings, his criminal trial on those charges was scheduled to begin on July 21, 2003.

But his trial never took place, because in June 2003—immediately before the trial was to start—President Bush declared al-Marri to be an “enemy combatant.” As a result, the Justice Department told the court it wanted to turn him over to the U.S. military, and thus asked the court to dismiss the criminal charges against him. The court did so. Thus, right before his trial, the Bush administration simply removed al-Marri from the jurisdiction of the judicial system—based solely on the unilateral order of the president—and thus prevented him from contesting the charges against him.

Instead, the administration transferred al-Marri to a military prison in South Carolina (where the administration brings its “enemy combatants” in order to ensure that the executive-power-friendly Fourth Circuit Court of Appeals has jurisdiction over all such cases). Al-Marri was given the “Padilla Treatment”—kept in solitary confinement and denied all contact with the outside world, even including his attorneys. He was not charged with any further crimes and was given no opportunity to prove his innocence. Instead, the Bush administration simply asserted the right to imprison him indefinitely.

In November 2006, Congress ratified this executive behavior when it enacted the Military Commissions Act (MCA). And the Bush administration wasted no time relying on that statutory authority to justify the exercise of this extreme detention power. From the Associated Press report in December regarding al-Marri’s case:

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantánamo Bay also applies to foreigners captured and held in the United States.

Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

The MCA authorizes the president to detain any noncitizen as an enemy combatant and does not require that detainees be charged with any crime. That includes resident aliens and foreigners who have legally entered the United States:

“It’s pretty stunning that any alien living in the United States can be denied this right,” said Jonathan Hafetz, an attorney for Al-Marri. “It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention.”

These are precisely the practices the U.S., for decades, has vocally condemned when employed by other countries. As Amnesty International has said with respect to this case:

The practice of detaining people incommunicado has been condemned by human rights bodies, including the UN Special Rapporteur on Torture, as a human rights violation which can lead to other violations such as torture or ill-treatment or interrogation without due process safeguards.

Access to a lawyer is an important safeguard to ensure that detainees’ rights are protected, not only with regard to criminal or other proceedings, but also with regard to conditions of detention and a detainee’s physical and mental health. Prolonged incommunicado detention or solitary confinement can in itself be a form of cruel, inhuman or degrading treatment.

Sermons like that about the value of basic individual rights and the imperatives of due process were previously delivered
by
the United States. Now, they need to be delivered
to
us, because we seem to have rejected them. By submitting to the president’s Manichean imperatives, we have become a country that vests in the president the power to order people imprisoned indefinitely with no meaningful review of the charges against them, even when the detainees are not detained on any battlefield, and even when they are detained on U.S. soil.

There is no greater betrayal of the core principles of American political values than to have the federal government sweep people off the streets, throw them into a black hole incommunicado, with no charges asserted of any kind, for as long as the president desires—in the case of al-Marri’s detention, now five years and counting. Principles once beyond debate, constituting the bedrock of our political system, are now openly violated by our own government.

DEFENDING AMERICA BY ABANDONING ITS VALUES

T
he treatment of Padilla and al-Marri, and the new executive powers routinely exercised by the president, would provoke outrage if engaged in by any other country. But the fact that it is the U.S. that has empowered the president to take such steps reveals what a radical legacy George Bush will leave. The U.S. has spent decades condemning precisely this kind of behavior when engaged in by other countries, even calling it Evil.

As for one highly illustrative example showing we do not tolerate such conduct from other nations, Florida senator Mel Martinez, who in 2007 also became the Republican Party chairman, sent around an e-mail in the fall of 2006 praising himself for his intervention in the case of Cuc Foshee, a U.S. citizen who had just been released from a Vietnamese prison. The month prior, Foshee had been convicted after a trial of a plot to overthrow the Vietnamese government (deemed to be “terrorism” under Vietnamese law), which included planned bombings as well as radio devices “to jam the airwaves of pro-government radio stations and broadcast their own message of uprising.”

Martinez made Foshee’s release a personal crusade, single-handedly obstructing U.S. normalization of trade relations with Vietnam unless Foshee was released. To justify and celebrate his intervention in this case, Senator Martinez claimed in his e-mail that Foshee was subjected to oppressive and unjust treatment by the Vietnamese government. His e-mail proclaimed:

This week, Senator Martinez praised the return to the United States of Thuong Nguyen “Cuc” Foshee, a U.S. citizen residing in Orlando, Florida. Mrs. Foshee was arrested and imprisoned in Vietnam and for the first 14 months of her imprisonment, she was not formally charged nor allowed to seek legal counsel….

Senator Martinez, U.S. Representative Ric Keller and State Department officials worked together to encourage the Vietnam government cooperated [
sic
] and Mrs. Foshee was allowed to return to the United States last Monday.

The United States is currently holding at least fourteen thousand detainees in its custody around the world (former Clinton official Sidney Blumenthal has reported, based on interviews with Colin Powell’s former chief of staff, Colonel Lawrence Wilkerson, that the number is closer to thirty-five thousand, only an extremely small percentage of which have any connection to terrorism). Virtually none of those detainees is given a trial of any kind, and some—such as Padilla—are held in those circumstances not for fourteen months like Foshee, but for many years.

On his Senate website, Martinez trumpets his heroic efforts to save Foshee from Communist tyranny in Vietnam by securing her release from prison even in the wake of her terrorism conviction. Yet also on Senator Martinez’s website is an October 17, 2006, press release, issued on the day the president signed into law the Military Commissions Act of 2006, authorizing the U.S. president to detain “terrorist suspects” forever with no access to courts of any kind:

U.S. Senator Mel Martinez (R-FL) today applauded President Bush’s signing of S. 3930, the Military Commissions Act of 2006….

Senator Martinez said: “We must remember the detainees this law affects are terrorists engaged in an ongoing war against the United

States.”

Martinez, like every senator (other than Lincoln Chafee) in the Republican Party that he now chairs, voted in favor of the MCA. Martinez also voted against a proposed amendment to that bill which would have allowed terrorist
suspects
the right to challenge the accusations against them in court—the very right given to Foshee by the Communist regime in Vietnam. Additionally, throughout her incarceration, Foshee “had regular contact with the U.S. consul in Vietnam.” As was true for José Padilla, most terrorist
suspects
in U.S. custody are held for lengthy periods without any contact with the outside world at all. Some have been even held in
secret prisons
to ensure that not even international human rights groups such as the Red Cross would know of their existence. While Martinez voted to legalize such conduct in the U.S., he vigorously protested far less egregious abuses in the Foshee case.

Similarly, whereas the U.S. was once a worldwide leader in protecting the rights of journalists, we have now become, in pursuit of George Bush’s battle against Evil, a systematic violator of such rights. Indeed, in the eyes of many international journalists, the U.S. is a genuine threat to their freedom to report on the conduct of our country.

Bilal Hussein is a Pulitzer Prize–winning Associated Press photographer who was detained by the U.S. military in Iraq in April 2006. The U.S. continued to hold him through the remainder of the year without charging him with a single crime. The U.S. military has vaguely claimed that he has close ties with Iraqi insurgents, but steadfastly refuses to specify what he is alleged to have done, refuses to provide any hearing or process of any kind for him to learn of the charges or contest them, and refuses to respond to AP’s requests for information about why their photographer is imprisoned.

Hussein’s detention was preceded by months of vicious complaints from Bush followers in the blogosphere and elsewhere that Hussein’s photojournalism was anti-American and suggestive of support for the insurgents. Before there were even any news reports anywhere about Hussein’s detention, right-wing blogger and Fox News contributor Michelle Malkin learned of Hussein’s arrest—she claims “from an anonymous military source in Iraq”—and blogged about it. She asserted that “Hussein was captured earlier today by American forces in a building in Ramadi, Iraq, with a cache of weapons.”

What is notable and encouraging in the Hussein case is that the Associated Press has become increasingly aggressive about defending press freedoms and objecting to the U.S. government’s lawless detention of one of its journalists. After first attempting unsuccessfully to negotiate with the U.S. military to obtain
either
formal charges against Hussein
or
his release, AP, with increasing passion, has been publicly complaining about the treatment of its photographer. Toward the end of 2006, they escalated their campaign by reporting aggressively on this incident, as exemplified by this article:

The U.S. military’s indefinite detention of an Associated Press photographer in Iraq without charges is an outrage and should be seen as such by the journalistic community, AP editors said Friday.