Codifying Chateau d’If: The Monte Cristo effect

Codifying Chateau d’If

by digby

I think one of the most stunning aspects of the administration’s decision not to veto an historic expansion of government power to imprison even its own citizens indefinitely and without due process is the context. Sure, we live in a very dangerous world. But we’ve been living in one at least since the advent of of The Bomb and the last I heard we were picking off Ad Qaeda members three at a time. The fact that this is happening with the war in Iraq wound down and Afghanistan scheduled to do so as well is what’s odd.

Ginny Sloan of the Constitution Project put it well:

But what will we say to future generations if the National Defense Authorization Act of 2012 (NDAA) becomes law? That legislation contains a provision that authorizes the president to indefinitely imprison, without a criminal charge or court hearing, any suspected terrorist who is captured within the United States — including American citizens.

It is difficult to imagine a greater attack on one of the most basic of individual freedoms protected by our great Constitution. As Justice Antonin Scalia wrote in his dissenting opinion in Hamdi v. Rumsfeld (2004), “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

If members of Congress choose — for the first time in our nation’s history — to codify a system of indefinite detention without charge and authorize such confinement on the basis of suspicion alone, they will do so with their eyes wide open. The attacks of 9/11 are now more than ten years old. Although our troops are still engaged in Afghanistan, the fog of war has long since lifted.

Indefinite detention will now be law, not some emergency measure that history will judge to have been a mistake made in a crisis. It is a well thought out codification of certain views that have become commonplace in American society — that “terrorists” (to be defined by whomever sits in the White House) are not to be allowed the due process allowed to other human beings because our government just *knows* they are so dangerous we cannot even take the chance that they won’t be found guilty. That turns the rule of law on its head.

Adam Serwer has been following this story for Mother Jones and described the “changes” this way:

The conference version of the bill gives the White House so much room to maneuver around the “mandatory” nature of the military detention provisions that Congress can argue they’ve given the administration the “flexibility” it needs to fight terrorism effectively. At the same time, the bill creates a presumption of military custody for foreign nationals suspected of terrorism where there was none before.

That means next time a foreign national gets pulled off a plane with their underpants on fire, and the administration doesn’t throw him in a brig somewhere, elected officials can run to the microphones and express their frustration that the White House is defying congressional will.

I think that’s a long shot, don’t you? What administration is not going to simply throw them in the brig rather than “defy congressional will” and try them in a civilian court. It won’t happen.

Instead, we will see “terrorists” (however they’re defined) disappeared into a military justice system indefinitely, just as those Gitmo prisoners, many of them innocent of any serious crime, have been left to moulder in prison basically forever. As Serwer noted, “the transfer restrictions effectively turn Gitmo into the Chateu d’If.” (I have used the same reference many times, calling it “The Count of Monte Cristo effect.”)

The horror of indefinite detention, often in solitary confinement by capricious decision with no due process is one of the greater horrors of the imagination (to me anyway.) Consider what we’ve already done:

One spring day during his three and a half years as an enemy combatant, Jose Padilla experienced a break from the monotony of his solitary confinement in a bare cell in the brig at the Naval Weapons Station in Charleston,South Carolina.

That day, Mr. Padilla, a Brooklyn-born Muslim convert whom the Bush administration had accused of plotting a dirty bomb attack and had detained without charges, got to go to the dentist.

“Today is May 21,” a naval official declared to a camera videotaping the event. “Right now we’re ready to do a root canal treatment on Jose Padilla, our enemy combatant.”

Several guards in camouflage and riot gear approached cell No. 103. They unlocked a rectangular panel at the bottom of the door and Mr. Padilla’s bare feet slid through, eerily disembodied. As one guard held down a foot with his black boot, the others shackled Mr. Padilla’s legs. Next, his hands emerged through another hole to be manacled.

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

[…]

Now lawyers for Mr. Padilla, 36, suggest that he is unfit to stand trial. They argue that he has been so damaged by his interrogations and prolonged isolation that he suffers post-traumatic stress disorder and is unable to assist in his own defense. His interrogations, they say, included hooding, stress positions, assaults, threats of imminent execution and the administration of “truth serums.”

A Pentagon spokesman, Lt. Col. Todd Vician, said Sunday that the military disputes Mr. Padilla’s accusations of mistreatment. And, in court papers, prosecutors deny “in the strongest terms” the accusations of torture and say that “Padilla’s conditions of confinement were humane and designed to ensure his safety and security.”

“His basic needs were met in a conscientious manner, including Halal (Muslim acceptable) food, clothing, sleep and daily medical assessment and treatment when necessary,” the government stated. “While in the brig, Padilla never reported any abusive treatment to the staff or medical personnel.”

In the brig, Mr. Padilla was denied access to counsel for 21 months. Andrew Patel, one of his lawyers, said his isolation was not only severe but compounded by material and sensory deprivations. In an affidavit filed Friday, he alleged that Mr. Padilla was held alone in a 10-cell wing of the brig; that he had little human contact other than with his interrogators; that his cell was electronically monitored and his meals were passed to him through a slot in the door; that windows were blackened, and there was no clock or calendar; and that he slept on a steel platform after a foam mattress was taken from him, along with his copy of the Koran, “as part of an interrogation plan.”

Mr. Padilla’s situation, as an American declared an enemy combatant and held without charges by his own government, was extraordinary and the conditions of his detention appear to have been unprecedented in the military justice system.

Philip D. Cave, a former judge advocate general for the Navy and now a lawyer specializing in military law, said, “There’s nothing comparable in terms of severity of confinement, in terms of how Padilla was held, especially considering that this was pretrial confinement.”

Padilla was famously thrown back into the civilian system when the Supreme Court overruled the decision under which he had been held in those conditions. The damage had already been done. Indefinite detention, particularly with solitary confinement, for anyone, American or not, is a form of torture.

I think dday’s analysis of why this happened is probably correct:

Remember that the White House has little problem with indefinite military detention. They just want to be able to dictate when it gets used and on whom. So they obviously see enough flexibility here to carry out unconstrained intelligence gathering and detention policies.

The part at the end, where they hope and pray that Congress will go back and fix the bill if it ever becomes a problem, is just nonsense. And the bill overall is ripe for abuse. The White House simply didn’t want to take the political hit for vetoing a bill that “supports the troops.” And they weren’t aroused enough by the thought of indefinite military detentions to mount any serious opposition to it.

The status quo remains in practice and the symbolism of codifying indefinite detention is probably a price they are willing to pay. The word is that the National Security types were overruled by the political people, but at the end of the day the only people who are worried about this for the long term are a bunch of shrill civil libertarians who are watching some very basic human rights and constitutional principles be eroded even years after the fog of war has cleared.

And those of you who trust that the Obama administration will not misuse this discretion should not be soothed. This law will remain on the books long after he is gone. How do you suppose the first Tea Party president will interpret it?