"We can't kill our way to a peaceful tomorrow."

This is Anna Allison. As she was.

On September 11, 2001, she was in an airplane that was crashed into one of the towers of the World Trade Center.

Nearly 3,000 people were killed that September day by the acts of the terrorists. They left behind untold numbers who knew them, miss them, cared for them, loved them.  They left fathers, mothers, brothers, sisters, sons and daughters, grandparents, nieces and nephews, classmates, co-workers, friends, neighbors, even strangers who grieve, have grieved, will grieve.

Among those was Anna Allison's husband, Blake.

Blake is among 10 family members, chosen by lot, to go to Guantanamo Bay and witness the arraignment, before a military commission, of the alleged mastermind of the September 11 attacks, Khalid Sheikh Mohammed, and of four others the government says are terrorists.

The government's hope, its desire, its commitment, and its full expectation is to get the commission to say they should be killed and then to kill them.

Blake wants to save their lives.

Josh Margolin, writing in the NY Post.

He said his opposition to execution is rooted in his Episcopalian faith.
“When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’
“That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”

Blake has talked about this with the other 9, er, lucky witnesses. They all want the 5 to be killed.

I know they’re sincere in their beliefs,” he said.
“They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”

This is the New York Post. A newspaper that can't imagine a presumption of innocence, or even uncertainty.  Margolin writes that Blake wants

to try to save the lives of the al-Qaeda monsters who planned the murder

and explains that he's in Guantanamo for

the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices.

When what purports to be a news report characterizes the accused (and at this point, that's all they are, rhetorical hyperbole from the Post or elsewhere aside) as "monsters" and "evil," you know not to expect much objectivity. But maybe it's the Post's absolute amazement that accounts for the story.

“The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post.

And then Blake Allison said the line that gave this post it's title.

We can't kill our way to a peaceful tomorrow.

On a Sun-Kissed Island - Where We Tortured People

This is what you think of first.

Or maybe this.

 

But there's also this.

And this.

And of course, there's this.

All of it is Guantánamo Bay.

• Torture chamber.
• Prison camp.
• Caribbean port.
• Naval Base.

And oh, yeah, there's also this.

Because, of course, Guantánamo Bay, and our naval base there, is part of Cuba.

After the Spanish American War, when we wrested as spoils Puerto Rico and Hawaii and Guam and the Phillipines, we allowed Cuba a narrowly circumscribed autonomy, turning it into something of a vassal state.  Really, a colony.  And we made Guantánamo ours.

Sometimes sleepy, sometimes volatile, sometimes prison camp.

But ours.  For better or worse.

Before Castro, when the Bay (and the base) was part of our Cuban fiefdom.

After Castro, when the Kennedy administration considered plans to make him invade the base (or appear to - in a weird preview of what the Johnson administration would do with the Gulf of Tonkin Incident - so we'd have an excuse to invade.

Lately, of course, it's been for worse.

January 11 marked the 10 year anniversary of the opening of Camp X-Ray, the day the first prisoners (more delicately called "detainees") arrived at the concentration camp.  But we'd been there for 100 years by then.  And we'd detained and kept behind concertina wire tens of thousands of people who'd done nothing wrong.  And we tortured them.

We'd thought for decades that our base in Guantánamo Bay was a place that no law could reach.  It was part of Cuba, but Cuba had no authority.  But it was part of Cuba, so our courts had no authority.  Or so we believed.  And so the courts had mostly ended up agreeing.

So, really, if you want to hold prisoners without having to justify it. And if you want to torture them without anybody looking over your shoulder.  And if you want to keep them without due process or lawyers or courts or reporters.  And if you want to carefully circumscribe the whole damn thing.  

A naval base that we absolutely control on an island in the middle of the Caribbean that is a country that we treat as an enemy.

Really, what could be better?  Just ask John Yoo.  But he came late to the game that began decades ago.

There are some really good, seriously troubling books about what we've done at Gitmo in the last 10 years.  For reportage, there's Jane Mayer's The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.  From lawyers who represented the prisoners, there's Joseph Margulies's Guantánamo and the Abuse of Presidential Power and Clive Stafford Smith's Eight O'Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay.  From the officers stationed there, there's James Yee's For God and Country: Faith and Patriotism under Fire and Erik Saar's Insided the Wire: A Military Intelligence Soldier's Eyewitness Account of Life at Guantánamo.  Many others, too.

But they're books of a decade.  There's no shortage of context, but it's the context of permanent war on a tactic, of the Shrub administration's enthusiastic abandonment of any respect for civil liberties because we'll give up all our liberty to preserve our liberty.

Except, again, it wasn't just Bush II.

It was Bush I.  And Clinton.  And Eisenhower.  And Kennedy.  And Nixon.  And - you get the idea.

And our involvement in Guantánamo, it turns out, goes back at least as far as Lawrence Washington, half brother to George.

You don't learn all of that from the daily papers (or the Daily Show), or from any of those books I mentioned before, good as they are.  To get the history and the historical context, to see how what we've done at Guantánamo isn't an artifact only of an administration committed to the proposition that, as Condoleezza Rice said, echoing Tricky Dick (which really should have been a clue), 

When the president does it, that means it is not illegal.

And it's racism writ broad and deep and ingrained in a faux Donna Reed Show world.

For that understanding, and for the downright interesting details that go with it, you have to turn to Jonathan M. Hansen's terrific new book, Guantánamo: An American History.  (Note to the Feds: A gift from my son, not the publisher or author or a bookseller.)

Where else will you read the story of Charles Ryan.  He was 19 when his father was posted to Guantánamo, and went along.  But while living on the base, he came to join the Cuban resistance, smuggling guns and ammunition and along with two friends from the base joining Fidel Castro and the revolutionaries in their hideout in the Sierra Maestra mountains?

And where else will you get the context?

Here's Hansen, on part of the book's website.

After centuries, literally, of salivating over Cuba and Guantanamo Bay, we took the bay from newly independent Cuba, forcing the initial lease down Cuba’s throat. We exploited the bay to promote US commercial interests in Cuba over the interest of, especially black Cubans, settled in southeast Cuba; during the Cold War, we contemplated and sometimes launched secret and illegal operations against the Cuban government from Guantanamo Bay.
In short, the history of Guantanamo Bay reveals the complexity, the ambiguity of American history and refutes the idea that America had any grace to fall from. Grace has never been what nation-making is about, not American nation-making, not anybody else’s, notwithstanding the nation’s many acts of generosity and its noble founding principles.
I want to be crystal clear about this: those principles were, from the very beginning, shot through with paradox and contradiction, and Guantanamo’s history enables us to see this paradox in stark relief. Focus solely on recent political and legal decisions taken at or about Guantanamo does not begin to get at that complexity.
From the vantage point of history, in other words, post 9/11 Guantanamo is not a freakish departure from American history. Guantanamo out Americas America, in sociological, cultural, political, and legal ways. Guantanamo is part of who we are. 

All of which goes some to explain just why it is that for all his promises and commitments to shut down Gitmo, His Barakness is no more willing or able to do it than Shrub.  And if the formal torture stopped there - and it apparently did well before the end of the Bush presidency - Obama has stridently resisted efforts to examine who did and what they did and certainly to hold anyone accountable.  But he did say that he knows we treated Bradley Manning just fine because his captors said so.

Because in Cuba, and really, throughout this great land and frankly the rest of the world, the more things change, the more they stay the same.  The past really is prologue.

Hansen helps us see that.

The Fat Lady Never Sings

Ten years ago today, the first prisoners arrived at Gitmo.

More and more came.

They were all too dangerous to be anywhere else.

They were all terrorists committed to killing Americans. Anywhere. Anytime.

There were enemy combatants not entitled to the protections of the Constitution, of Statutes, of the Geneva Convention or other treaties, or of International common law.

And that was OK, because there were no mistakes.  Every one who was there deserved to be, needed to be.  Without exception.  Without error.

We knew because the government told us so.  Just as we knew, because the government told us so, that they were treated with generosity and decency and full respect for their rights and their beliefs.

And waterboarding.

They could be released only when the war against the tactic of terrorism was over, when nobody, anywhere, could ever again engage in terrorism because the idea of it had been eradicated.

They could, that is, never be released.

There were hundreds and hundreds of them.

Then lawsuits were filed.

Some were released.

More were.  In fact, most were.

Because, well, they just were.

And some would be released if we could just find a place to send them because they did nothing wrong and posed a threat to nobody but having been in Gitmo - well, that was a warrant to torture or kill on their return to whereever.

Obama, of course, vowed to shut the place the down.  By the end of 2009.

Today, ten years to the day after the first prisoners arrived, there are still 171 of them there.

With no end in sight.

No light at the end of that tunnel.

Gitmo On The Plains

Lets track the three kinds of prisoners at Gitmo.

1. Khalid Shaikh Mohammed and four others, against whom the government feels they have really good evidence, are to be criminally charged and tried in federal court.
2. Another group, against whom the evidence isn't so good will be tried before military commissions.
3. A final group, against whom there's apparently no evidence, will simply remain prisoners forever.

Such is American justice in the Obama administration. The more clearly you're guilty, the more fairly you're treated. That seems backwards, perhaps. Indeed, the whole thing is not just backwards, it's perverse.

Consider what happens if the plan goes awry. Imagine, somehow, that KSM is acquitted. What then? Daniel Newhauser at The BLT: The Blog of Legal Times, covering a Senate hearing last week at which Homeland Security Secretary Janet Napolitano testified, noted that John Cornyn (R. Texas, former trial judge and Texas Supreme Court Justice) was worried that if KSM and his buddies were acquitted,

they might, apply for asylum if their home countries wouldn’t take them back or that they might receive special immigration rights or even legal immigrant status.

Sure. And maybe we'll make them honorary citizens and give them the keys to the city and perhaps pay them damages for the time they spent at Gitmo.

Not to worry, Napolitano told him. They'd be deported immediately.

“In the off chance that there were to be an acquittal for these individuals, they would immediately be put into removal proceedings and be deported.” She said, “They are paroled…into the country only for the purposes of prosecution. There are no immigration benefits that accrue to that.”

Cornyn wasn't satisfied.

[W]hat guarantees do we have that he can be detained indefinitely, either here or somewhere else?

Napolitano said that there was really no issue because they'd all be convicted. (She didn't add, as Obama did, that they'd also be executed, but she might as well have. You know she thinks so.) But that's denying the question, not answering it. The answer of course, is that nobody's going to let them go.

If acquitted, they'll be locked up forever unless we can deport them somewhere where we'll be sure they'll be tortured and then killed. Nobody will say that, because it admits the truth about these upcoming trials. Even KSM and the boys who get the proper federal criminal trials won't really get the full panoply of constitutional protections. There'll be one that's missing: If you're found not guilty, you're released.

And so we come to the news that Obama wants to move Gitmo to Illinois.

Remember that pledge to close it in a year. Remember that he won't meet that goal. But at least now he's figured out what to do with the folks there. Move them to the Illinois/Iowa border, just south of Wisconsin. There, on the plains, in the middle of the country. Thomson, Illinois. Take over a mostly empty maximum security prison and make it maximumer and extra secure. And put the folks now at Gitmo there.

The ones we don't kill. The ones against whom we have no evidence that they have done anything or would do anything but who are too dangerous to free. And the ones, if there are any, who are actually found not guilty.

Gitmo has to be closed because it's a national, and especially an international embarassment. A symbol of a 21st Century version of The Ugly American. it has to be closed because promising to close it is part of how Obama isn't Shrub and therefore somehow deserved the Nobel Peace Prize.

But there's enough Shrub in Obama that closing it is a problem for him. What to do?

Tom Parker, Amnesty International USA policy director for (counter) terrorism and human rights, put it succinctly.

The only thing that President Obama is doing with this announcement is changing the Zip Code of Guantanamo.

We're still going to be holding people forever without charges or trials. We'll just do it on the mainland.

And it's an interesting place. 55 miles south of Cuba City, Wisconsin. 116 miles north of Cuba, Illinois. Guantanamo on the mainland, right near the Cubas of the midwest.

Which, I guess, suggests that maybe there is a place to which we can deport KSM if he's acquitted. After all, there'll be all those empty cells at the original Gitmo we can stick him.

BECAUSE SOME PEOPLE STILL WISH WE DID: THE DEATH OF AMERICA EDITION

Unlike Greenfield, I've never met Michael Mukasey, never tried a case before him, have no particular sense of the man. There were positive words about his integrity and such when Shrub nominated him to succeed Gonzalez as Attorney General. Then he dissembled about waterboarding and we got the general idea; he was appointed to be a company man, a less foolish seeming Gonzo.

So maybe it's those remarks, and maybe it's just because I don't know the guy and have no experience with him, but also unlike Greenfield, I'm not surprised that Mukasey declared in the Wall Street Journal that terrorists can't be "successfully" tried in our criminal courts. Nor, I'm afraid, am I surprised by the reasons:

• The inconvenience of special security.
• The prospect that a terrorist might attack.
• The prospect that a lawyer might file suit.
• That pesky Constitution and Bill of Rights.
• Those jurors who don't always impose death sentences.

So the man Bush chose to be attorney general agrees with the positions of the Bush administration. What else is new?

Greenfield does a fine job pointing out why those arguments are silly, wrongheaded, and deeply offensive. No need for me to rehash that ground. Go read it on his blog and recognize Mukasey for the toady that he is and his postitions for as rankly unAmerican as they are.

But there's another part of what Mukasey wrote that Greenfield doesn't get to (it's off his subject) but that's worth a bit of thought. "[C]ritics of Guantanamo," he writes, referring to pretty much everyone who doesn't think we should be in the business of torture or should be building kangaroo courts and violating the Constitution in order to save it,

seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.

Got that? Yes, it's true that if we let our system operate at its best, we will earn [and deserve, he doesn't say] the respect and approbation of the world. But a few lunatics will still hate us, so why bother?

Why bother, indeed? Why do things right if you can't subdue everyone else in the process? Why work with the world when the reward may not be total fealty? Why be a decent human being when there might not be total profit from it? Mukasey apparently did more than drink the Bush/Cheney kool aid. He mainlined it.

Or maybe he was a true believer from the start, which is perhaps even scarier.

Still, it's appropriate that we give Michael Mukasey a thank you for reminding us just how fragile our rights are, how ready we are to abandon them because they're inconvenient, and because honoring what's best in us might not make us successful tyrants.

The Constitution hangs by a thread. We should remember that. Thanks, Mike.

And throw away the key

So when it comes right down to it, Americans have decided that they don't like Gitmo, but they like having alleged terrorists and Al Quaeda and Taliban fighters in their local prisons even less.

Unless, as AP reported, they happen to live in Hardin, Montana, where the town built a new jail with the hope that they could rent the bed space out and make it an incarceration hotel. The jail, a medium security facility that the town fathers say can be easily upgraded to maximum, sits empty, the bonds issued to pay for it are in default. Taking in some prisoners would be a boon to the economy, and really, what's to worry. As one local said,

"I'm a lot more worried about some sex offender walking my streets than a guy that's a world-class terrorist. He's not going to escape, pop into the IGA (supermarket), grab a six-pack and go sit in the park."

So the city council voted, without dissent, to take all the prisoners from Guantanamo.

Or unless they live in Florence, Colorado, home of the only federal supermax prison, known as Alcatraz of the Rockies. According to Reuters, The good people of Florence aren't any more concerned than the folks in Hardin. And they know what it's like to have serious bad guys in their local prison. Terry Nichols is there. So is Ted Kaczynski. And 1993 World Trade Center bomber Ramzi Yousef and Zacarias Moussaoui. Oh, the prison is almost full, but they can build an addition or transfer some of the current prisoners.

But as Dahlia Lithwick reminds us, the prisoners at Guantanamo, while perhaps the most attention-grabbing, are really the least of our prison problems. Our real prison problem: We lock up too many people. James Webb, Senator from Virginia, has gathered some of the data. Lithwick summarizes it this way:

The United States, with 5 percent of the world's population, houses nearly 25 percent of the world's prisoners. As Webb has explained it, "Either we're the most evil people on earth, or we're doing something wrong." We incarcerate 756 inmates per 100,000 residents, nearly five times the world average. At this point, approximately one in every 31 adults in the United States is in prison, jail, or on supervised release. Local, state, and federal spending on corrections now amounts to about $70 billion per year and has increased 40 percent over the past 20 years.

You know, that's descriptive, but it doesn't capture just why it's all a problem. Nor does this:

The Justice Department estimates that 16 percent of the adult inmates in American prisons—more than 350,000 of those incarcerated—suffer from mental illness; the percentage among juveniles is even higher. And 2007 Justice statistics showed that nearly 60 percent of the state prisoners serving time for a drug offense had no history of violence and four out of five drug arrests were for drug possession, not sales. Webb also reminds us that while drug use varies little by ethnic group in the United States, African-Americans—estimated at 14 percent of regular drug users—make up 56 percent of those in state prison for drug crimes. We know all of this. The question is how long we want to avoid dealing with it.

I mean, all of that is terrible. The data here show that our approach to crime is almost uniquely punitive, financially wasteful, racist in impact even if not in intent, and senseless. But so what? Is there really any reason we shouldn't lock up non-violent drug offenders?

In fact, there is. Someday we release them. And we've virtually assured that they will not be productive members of society once we do. They'll be unskilled, unemployable, angry. They'll have been trained to lash out at the slightest provocation, to take what they can when they can, to become more dangerous than when they went into prison. And we won't be reducing crime, anyway.

What's that last? Surely if you just lock everyone up forever, crime will go down? I suppose that's true in absolute terms. If you lock up everyone, there'll be nobody left on the outside to commit crimes or be victimized. But we won't do that. And here, from the National Law Journal, is the bottom line. Locking people up isn't the most effective way to reduce crime. Rather, treatment, rehabilitation, and a recognition that some things just can't be well-handled by the criminal justice system.

Look, the criminal courts, the justice system, work on the back end of the problem - after the crime. If you want to stop the crimes from occurring in the first place, you have to go about it differently. You have to look at prevention. You have to provide alternatives to crime. You have to provide education and jobs and hope. You have to change cultures.

They made a lot of fun of it, and it never really happened, but one idea that Bill Clinton had that was clearly right was midnight basketball.

BAD DAY FOR THE ABOLITIONISTS

Two death penalty stories of note. First, New England, then Guantanamo.

New England:

In May 2000, then Governor of New Hampshire Jeanne Shaeen vetoed a bill that would have ended the state's death penalty. Yesterday, just over nine years later, Connecticut Governor Jodi Rell vetoed her legislature's abolition bill. (Stories here and here.) She's not new to this. In December 2004, when Connecticut was getting ready to kill Michael Ross (it happened in May 2005), she announced that she would veto any abolition bill. (Story here,)

In a message accompanying yesterday's veto (you can read it here), Rell said what is clearly true (there are passionate retentionists and passionate abolitionists) and what is clearly nonsense ("There is no doubt that the death penalty is a deterrent" [the emphasis is mine]).

She also took the opportunity to condemn the legislature for having "largely ignored" a study commissioned by the legislature and issued in 2003 (available here).

The report made significant and thoughtful recommendations that have been largely ignored by the Legislature, including training for public defenders and prosecutors. The goal of the report is to ensure that each decision to seek the death penalty is based upon the facts and law applicable to the case and is set within a framework of consistent and even-handed application of the sentencing laws, with no consideration of arbitrary or impermissible factors such as the defendant’s race, ethnicity or religion.

Yet at the same time she chastised the legislature for ignoring the study's recommendations, she said that she opposed them.

I believe that the current law is workable and effective and I would propose that it not be changed.

There will be an effort to override, at least in the House, but there aren't likely to be enough votes. So despite the votes of their legislatures, Connecticut and New Hampshire will, for the time being, remain the only states in New England that have the death penalty.

Guantanamo

You'll recall that back in December, Khalid Sheikh Mohammed, Ramsay Bin al-Shibh, Mustafa al Hawsawi, Walid Bin Attash, and Ali Abdul Aziz Ali the five prisoners at Guantanamo who were facing capital charges over the 9/11 hijackings all tried to plead guilty and accept execution. (Stories here and here.) The Military Commission has yet to rule on whether guilty pleas would be allowed.

Now it's reported (here) that the administration is drafting legislation that would specifically allow them to do that. Why? Because it would be really hard to convict them if we held real trials (or even sham trials). So we're going to encourage them to commit suicide by Military Commission. That way the world will see how fairly we're treating them and they won't become martyrs.

Sigh.

What's in a name?

I recently finished reading Neil deGrasse Tyson's The Pluto Files: The Rise and Fall of America's Favorite Planet which explores the background to and public controversy over the decision to remove Pluto from the collection of things astronomer's call "planets" and confer upon it the lesser status, "dwarf planet." (Publisher's blurb here.) Then Dick Cheney, in his speech the other day explaining that Obama's embrace of American values would lead to the deaths of thousands, maybe hundreds of thousands, said, "You don't want to call them enemy combatants? Fine. Call them what you want - just don't bring them into the United States. Tired of calling it a war? Use any term you prefer." (Text of speech here.)

Whatever Pluto was, it didn't become something different when the International Astronomical Union changed its status. And Cheney is right that keeping prisoners locked up at Guantanamo without meaningful legal protections is the same whether you call those prisoners "enemy combatants" or, say, "forensic accountants" (or "detainees," by the way, which is a word I'm not using) and that war by any other name kills just as many people. Things are what they are, no matter what you call them.

As Juliet said,

What's in a name? That which we call a rose
By any other name would smell as sweet.

On the other hand, words do matter and what we call things makes a difference. If Juliet was right, so was Hamlet. So when Polonious asked what he was reading, Hamlet's snarky response was "Words, Words, Words." Well, sure. But the (non) answer, while perhaps true, also obscured and obfuscated. That's what Orwell was talking about in "Politics and the English Language." (Here.) And it's what he let us see in action through the "Doublespeak" of 1984.

"Enhanced interrogations" may have the same referent as "torture" in the context of waterboarding, but the insistence of various folks on the term of their choice makes exactly the point that the two aren't the same. Michael Ratner, president of the Center for Constitutional Rights, referring to Obama's plan to establish a system of "prolonged detention" in the U.S. for the prisoners at Guantanamo, said, "Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name.” (Quoted in NYTimes here.) So maybe it does matter what we call things.

But it also matters what we actually do.

And whatever we call holding people in prison forever without trial (or after acquittal, if that should happen), it's not something we ought to feel good about. Obama's insistence that he can do it consistently with "our values" is true or false, I suppose, based on what those values are.

Here's one that's been with us a long time: You're innocent until found guilty by proof beyond a reasonable doubt. It's enshrined in the Constitution. See In re Winship, 397 U.S. 358 (1970). It's tied to the presumption of innocence, a value with roots that apparently go back at least to Deuteronomy. (See discussion here.)

Here's another: If you're innocent, the government has no business holding you in prison forever.

So what's the real problem? What truth do we fear? That we can't actually prove these guys are as bad as we're quite sure they are? That our "proof" is based on evidence so shoddy that nobody would believe it? That our proof came only from torture which gives unreliable results so even we don't really know if it's right? Then maybe, just maybe, we ought to reconsider that "prolonged detention." Maybe we ought to acknowledge that what we're really dealing with, no matter how we try to pretty it up, is a star chamber and that we're just planning to keep a bunch of innocent people locked up forever 'cause, well, 'cause we can.

But consistent, of course, with our values.