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Black Hawk Downer
It's safe to assume that the 150 or so Al Qaeda and Taliban militiamen now occupying those 6-by-8-foot cages in Guantánamo Bay are not sympathetic characters. It's also reasonable, and important, to say that they are in less danger to life and limb than their comrades handed over by the United States to the Northern Alliance. While the Western press has focused almost exclusively on Camp X-Ray, Amnesty International reported on February 1 that "the lives of thousands of prisoners in Afghanistan are at risk" from hunger and "rampant" dysentery, pneumonia and hepatitis, in overcrowded prison camps where inmates suffer shortages of food and medical supplies and "are not sheltered from severe winter conditions."
The fact that Camp X-Ray comes out ahead of the dreadful prevailing POW standard in postwar Afghanistan does the United States no credit. The image of prisoners shipped hooded, shackled and sedated to an unknown location was a foreign-policy disaster: in Europe, the Mideast and Asia alike, conjuring raw memories of the most vicious hostage-takings. Defense Secretary Rumsfeld's insistence that X-Ray's prisoners fall outside the protections of the Geneva Conventions and the US Constitution only furthered the impression of an Administration descending to the brutal law-enforcement benchmark of an authoritarian regime like Saudi Arabia. (Evidently the Administration just wants its guests to feel at home: Saudis count for at least 100 of the Guantánamo prisoners.) The White House's February 7 turnabout, declaring that Geneva Convention rules apply to Taliban captives but not Al Qaeda, amounts to a fig leaf satisfying neither the specific requirements of the accords nor the broader sense of alarm worldwide.
In part the shock expressed by US allies at the method of transport and incarceration at Guantánamo shows the huge gap between Europe and the United States on prisons and punishment. Western European prisons, for the most part, come nowhere near the degrading and isolating inmate-control regimens in many US facilities. Camp X-Ray is a close cousin to supermax penitentiaries with their psychically debilitating twenty-three-hour-a-day solitary confinement and twenty-four-hour cell lighting.
But comparing X-Ray to conventional prisons, and Afghanistan militia to conventional prisoners, only forces the questions Rumsfeld and the White House have tried so hard to obfuscate: Are the prisoners POWs or criminals? Just what rights should these international brigades of clerical fascism retain, as the losing side in a war backed by the United States but fought largely by proxy forces? Rumsfeld and the White House insist that neither Taliban nor Al Qaeda are prisoners of war but instead "unlawful combatants," suggesting that they don't deserve the numerous protections afforded POWs, most famously the right to respond to questions with name, rank and serial number but also including rights to representation, repatriation and due process. The Administration is now willing to admit that Taliban militia, as the former army of Afghanistan, are at least covered by the accords' broader humanitarian provisions; but the majority of Guantánamo prisoners--those Al Qaeda "Arab Afghans" who fought as allies of the Taliban regime--the White House still casts completely outside the protection of the Geneva Conventions.
A press outspun by Rumsfeld's daily patter has missed the simple fact that, as law, this argument has more holes than a Tora Bora cave after US bombardment. "Unlawful combatants" is a phrase found nowhere in the Geneva accords. Here is how Human Rights Watch summarizes it: "Under international humanitarian law, combatants captured during an international armed conflict should be presumed to be POWs until determined otherwise." Only a court or other "competent tribunal"--not the Defense Secretary or the President--can make that determination. In fact, the Pentagon's own Judge Advocate General Handbook declares that "when doubt exists" about a prisoner's status, "tribunals must be convened"--as they were for Iraqi prisoners in the Gulf War.
The United States has good reason to care about these procedures. During the Vietnam War, Hanoi declared captured US fliers "unlawful combatants." It was Washington that insisted otherwise; in 1977 the United States made sure that the Geneva protocols were revised to insure that anyone captured in war is protected by the treaty whether civilian, military or in between, whether or not they technically meet the POW definition. Simply put, when President Bush unilaterally declares the majority of its prisoners outside the penumbra of the Geneva convention, he is still flouting both international law and international sensibility.
The trouble with placing Guantánamo's prisoners in a legal no man's land doesn't end there. If captured militia are not POWs then they can continue to be held only if they're individually charged with war crimes or other specific offenses. If that should happen to the Guantánamo prisoners, they're entitled to a "fair and regular trial" (a standard that almost certainly cannot be met by the drumhead courts authorized by Bush).
Bush's latest policy turn amounts to internment without trial for alleged Al Qaeda. It's entirely appropriate to want to question the Al Qaeda mafia's foot soldiers, and there are plenty of legitimate claims on the prosecution of Al Qaeda, from citizens in Kabul and New York and points between. But the way to go about both is through existing criminal and international laws--an approach that gets results, as the victims of Gen. Augusto Pinochet proved in courts on two continents. The Rumsfeld-Bush strategy, on the other hand, undermines the idea of cooperative transnational prosecution and representation of victims, replacing evolving international law with an autocratic extension of this Administration's foreign-policy unilateralism: If we can live without the ABM treaty, why not pitch those troublesome Geneva accords over the side as well?
In the Administration only Colin Powell understands how profoundly this shortsighted approach runs counter to the national interest. Powell is no friend of human rights. But he pushed so hard--winning the compromise of Geneva Convention recongition for Taliban prisoners--because as a former military man he knows that the United States, the world's number-one projector of force, has its own reasons to seek universal respect for the Geneva Conventions--conventions we instantly invoked when American pilots were shot down in the Persian Gulf, and again in the Balkans. Powell knows, too, that the whole logic of the Geneva accords--those special POW protections--is to entice losing combatants into pragmatic and dignified surrender. By making a transnational mockery of the Geneva protocols, Rumsfeld and Bush are inviting future enemies to conclude that suicidal escalation, rather than surrender, is the only sensible closing chapter of their jihad.
Rumsfeld is hell-bent on turning the prisoners of Camp X-Ray into legal nonpersons--essentially stateless, without the safe harbor of either international law or the US Constitution, granted status and rights only at the whim of the Defense Secretary. That may seem to serve the short-term goals of Al Qaeda interrogation, but the picture it presents to the world--a superpower playing semantic games with the most basic wartime covenants, setting back the evolving machinery for transnational justice--will generate its own unhappy blowback.
We have reached the point that the idea of liberty, an idea relatively recent and new, is already in the process of fading from our consciences and our standards of morality, the point that neoliberal globalization is in the process of assuming its opposite: that of a global police state, of a terror of security. Deregulation has ended in maximum security, in a level of restriction and constraint equivalent to that found in fundamentalist societies.--Jean Baudrillard, "L'Esprit du Terrorisme,"
reprinted in Harper's Magazine, February 2002
Sorry to have missed my column deadline. I got delayed at the airport. I was intending to write about the progress of the war on war. I wanted to write about how similar are the wars of words being used in the war on terrorism, the war on crime, the war on drugs, the war on poverty, the war on illiteracy and the war on hunger. I had intended to explore the ramifications of terms like "axis of evil," "triumvirate of terror," "parasites" and the concept of "taking no prisoners" (just detainees).
If I hadn't been delayed, I meant to talk about the war stories we're telling ourselves. That the Geneva Conventions aren't such a big thing. There's just no time for Miranda rights. Civil rights are just not needed. Got to break a few rules to enforce the law.
I was thinking that maybe I am just behind the times. While I wasn't looking, we moved on to less law, more New World Order. It's sort of a military order, as it turns out. It's a religious order too, what with our taxes becoming tithes for Faith Based Initiatives, Soldiers of Fortune and born-again Armies of Compassion.
But order it is, and you've got to admit, an ordered society is a nice and tidy one. Enemies are secretly and sanitarily disposed of. The media are controlled to provide only uplifting images of clean conquest and happy, grateful multitudes. Noisy protesters are swept into neat piles, like leaves. The government encourages village snoops and urban gossips to volunteer their infinite time and darkest thoughts as a way of keeping the rest of us in line. And I don't know much about Afghanistan's Hamid Karzai, but you've got to say this for him: that bias-cut green silk tunic worn over relaxed-fit, wool/linen blend trousers has become "le must" of the fashion world. No wonder Bush is up for that Nobel Peace Prize.
Anyway, that's what I was going to write about, but I didn't have time because I had to take a flight to Philadelphia and I was late because the old man who lives on the next block put his head in my car window as I was about to drive off and he wouldn't remove it while he told me all about how he's our new neighborhood volunteer-for-victory monitor or some such, and he wanted to take an inventory right there and then of any supplies I might have in my house that would be useful in case of national emergency. Any gas masks? Generators? Cell phones? Cudgels? Axes? Prescription drugs?
"Band-Aids," I offered politely. "And could we possibly do this another time?"
"How many people live in your house?" he persisted. "And didn't I see you pushing a baby carriage the other day?"
"Not in many years," I say.
"But I'm sure it was you," he pressed. At that instant I was visited by a very clear image of him on the witness stand. He is white-haired and gentle-eyed, firm-voiced and credible. Even I wanted to believe him so much that I forgot that I had not yet been charged with anything.
When I finally got to the airport I went through the abasements of security, a ritual cleansing of the sort practiced at maximum security prisons: I removed my shoes. I took off my coat. I held out my arms. A guard in a rakish blue beret bestowed apologies like a rain of blessings as she wanded my armpits. "You have an underwire in your bra?" she asked. "You mind if I feel?"
It is hard to be responsive to such a prayer with any degree of grace. It is ceremonial, I know, a warding off of strip-search hell. "Not at all," I intoned, as though singing in Latin.
Another agent was going through my bags. He removed my nail clippers from the intimacy of my makeup pouch and discarded them in a large vat filled with hundreds of nail clippers. A proper sacrifice, I think. I imagine they will distribute them to the poor.
The agent put on rubber gloves and opened my thermos and swirled the coffee around. He removed the contents of my purse and spread it out. When he picked up my leatherbound diary and flipped slowly through the pages, a balloon of irreligiosity exploded at the back of my head, and I could feel the hair rise up, as it does sometimes, getting all militant despite my best prostrations of mousse.
"My diary?" I said as evenly as I could. "This is getting like the old Soviet Union."
"So, you visited the Soviet Union...?" he asked, a glinty new interest hardening what had been his prior languor.
Anyway, I finally got to where I was going. And on my way back from Philadelphia, I wasn't searched at all. They stopped the woman just in front of me, though, and there she stood, shoeless and coatless, with the tampons from her purse emptied upon the altar of a plastic tray. Once on the plane, she and I commiserated, and then the oddest thing happened. Others around us joined in about how invaded and humiliated they felt when searched. The conversation spread across the aisle, then to the seat in front, the row in back. It grew to about five rows of people, all angry at the overseers, all suspicious, all disgruntled and afraid. I was, I admit, strangely relieved to see that we were not only black or brown; we were men and women, white and Asian, young kids, old designer suits. There was a weird, sad kind of unity in our vulnerability, this helplessness of ours. But there was a scary emotional edge to the complaining, a kind of heresy that flickered through it too. What a baffled little coterie we were. Equal opportunity at last.
Anyway, dear editor, that, in short, is why this is not a column. I was having a really bad hair day.
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