Posted by: sean | June 18, 2005

Gulags and Guantánamo Bay: First some facts

Recently, Senator Durbin has been accused of calling American soldiers nazis and comparing Guantánamo Bay to a gulag, because he spoke out against American torture on the senate floor:

When you read some of the graphic descriptions of what has occurred here — I almost hesitate to put them in the record, and yet they have to be added to this debate. Let me read to you what one FBI agent saw. And I quote from his report:

“On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. … On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.”

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.

This is not the first time that Durbin has spoken out against torture, and he had some pretty specific questions during the Gonzales Senate confirmation hearings in January 2005, which you can see or listen to for yourself:

Senator Durbin: “Let’s go to specific questions. Can U.S. personnel legally engage in torture or cruel, inhuman or degrading treatment under any circumstances?”

Alberto Gonzales: “Absolutely not. I mean, our policy is that we do not engage in torture.”

Senator Durbin: “Good. I’m glad you stated that for the record. Do you believe that there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?”

(seven second pause)

Alberto Gonzales: “Sir, I don’t believe that that would be the case, but I would like the opportunity to, I don’t, I want to be very candid with you, and obviously thorough in my response to that question. Uh. It is sort of a legal conclusion, and I would like to have the opportunity to get back to you on that.”

Later, during the same hearing, Durbin asked Gonzales about his memo on the Geneva conventions (video, audio):

Senator Durbin: “In your August memo, you created the possiblity that the President could invoke his authority as Commander In Chief to not only suspend the Geneva Convention, but the application of other laws. Do you stand by that position?”

Alberto Gonzales: “I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that could be viewed as unconstitutional by a President of the United States. And that’s not just the position of this President. That’s been the position of Presidents on both sides of the aisle. In my judgement, making that kind of conclusion is one that requires a great deal of care and consideration. But if you’re asking me if it’s theoretically possible that Congress could pass a statute that we view as unconstitutional. I’d have to conceed sir that that’s theoretically possible.”

Senator Durbin: “Has this president ever invoked that authority as Commander In Chief or otherwise, to conclude that a law was unconstitutional and refuse to comply with it?”

Alberto Gonzales: “I believe that I stated in my June briefing about these memos that the President has not exercised that authority.”

Senator Durbin: “But you believe he has that authority. He could ignore a law passed by this Congress, signed by this President or another one, and decide that it is unconstitutional and refuse to comply with that law?”

Alberto Gonzales: “Senator, again, you’re asking me, hypothetically, does that authority exist? I guess I would have to say that, hypothetically, that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here. Very, very complicated. Sometimes the answers are not so clear. The President’s position on this is, ultimately the judges, courts, will make the decision as to whether or not we’ve drawn the right balance here. And, and, in certain circumstances, the courts have agreed with the Administrations position, and, in certain circumstances, the courts have disagreed, and we will respect those decisions.”

Senator Durbin: “Fifty-two years ago, a president named Harry Truman decided to test that premise. Youngstown Sheet and Tube Co Et. Al vs. Sawyer in the Supreme Court. The Supreme Court said, as you know, President Truman, you’re wrong. You don’t have the authority to decide whats constitutional – what laws you like and don’t like. I’m troubled that you would think, as our incoming Attorney General, that a president can pick and choose the laws that he thinks are constitutional, and ultimately wait for that test in court to decide whether or not he’s going to comply with the law.”

These are the facts. I’m not even going to address the question of whether or not Durbin “called American troops nazis,” because it’s clear from his speech that he never did. However, he did obviously compare Guantánamo Bay to a Soviet gulag, as did Irene Khan, the Secretary General of Amnesty International — which has compiled a number of documents on Guantánamo Bay — in her forward to its 2005 report:

Despite the near-universal outrage generated by the photographs coming out of Abu Ghraib, and the evidence suggesting that such practices are being applied to other prisoners held by the USA in Afghanistan, Guantánamo and elsewhere, neither the US administration nor the US Congress has called for a full and independent investigation.

Instead, the US government has gone to great lengths to restrict the application of the Geneva Conventions and to “re-define” torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding “ghost detainees” (people in unacknowledged incommunicado detention) and the “rendering” or handing over of prisoners to third countries known to practise torture. The detention facility at Guantánamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.

To my mind, this is a much more interesting question: Are such comparisons helpful? Are they accurate? I will address these questions tomorrow.


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