Legalizing dictatorship

I became nauseous the other day when our new Attorney General Eric Holder made public 9 memos from the Justice Department of Bush years. The publication of these memos is in the spirit of Obama's promise of transparency and I was thrilled to see that Obama was carrying out yet another fulfillment of his campaign promises. But the content of the memos is what truly made me sick to my stomach.

The memos, written in the aftermath of 9/11, are legal opinions by Justice Department legal counsels from the Bush era, including the affably smiling but inherently evil John Yoo from Georgetown Law School, on the extent of Presidential powers in time of war. The lawyers argue that the President has exclusive authority to detain any American citizen he deems to be an enemy combatant, hold him indefinitely incommunicado wherehever he wants, apply whatever interrogation techniques he wants, and is not legally obligated to ever charge him with anything. Taking our country further into Kafkaesque and Orwellian abyss, the "legal experts" portrayed the Congress as an emasculated waste of space by arguing that it had no power whatsoever to check the powers of the executive. In the scariest memo of all, Yoo and Co. argued that the President had a sole authority to order the military to attack any part of the United States if there was an imminent terrorist attack. And who decides if there was an imminent terrorist attack? The President, sorry the King, of course!

The argument that we hear from the ever shrinking Right these days that these memos are simply a product of the government experts' fears in the aftermath of 9/11 is so childish and intellectually handicapped that it does not merit a comment. However, since it is the only argument the Right ever uses to justify Bush's destruction of our beloved Constitution, it has to be addressed. The whole point of the Constitution and the immense body of laws, the networks of legal checks and balances between our branches, and a whole scholarship of legal precedence, is to address potential (and often real) scenarios in which the security of our country might be jeapordized. The laws are made to address the situations in which ethical and moral choices are ambiguous, making government officials tempted more than ever to violate those laws for the sake of political expediency. Which is exactly what the Bush administration did. Acting in a knee jerk reaction and with immaturity that is simply breathtaking, these "legal scholars" violated the most sacred principles of not just ours, but of any democracy: the rule of law. The law is sophisticated enough to address the ethically ambiguous scenarios. And to claim otherwise shows blatantly cynical belief on the part of the Bush officials that democracy is just another political tool to be welded when necessary, but abandoned when inconvenient.

The so-called "moderate center" of our political spectrum has resisted the calls for a thorough criminal investigation of Bush officials arguing that this would be politically costly and polarizing. Again, democracy and the rule of law are sacrificed for the sake of political expediency. What is even more disturbing is that this argument completely ignores the real harm these violations of our Constitution have done to real human beings. And let me briefly mention one case, which made me so angry that I had to take a walk around the block of my house in order to calm down.

Jane Mayer of The New Yorker, writing in the Feb 23 issue, has done a remarkable job on reporting on the case of Ali Saleh Kahlah al-Marri, a Qatari man who arrived in Peoria, IL on Sept 10, 2001 with his wife and his wife children. He supposedly arrived to study at a small university in Peoria, but the government later claimed that he was an integral part of the horrible 9/11 attacks, but was thwarted by his arrest by the FBI. The FBI conducted a thorough investigation and was preparing to bring charges against him on wire fraud, credit card fraud, all of which could have resulted in a long imprisonment. However, in the summer of 2003 as the FBI agents were preparing to indict him, the military, at the explicit order of George Bush, entered the prison cell and dragged him away at the bewilderment of the FBI agents who were furious at what they saw as a kidnapping of their suspect. It turned out that Bush had declared al-Marri to be an enemy combatant and ordered the military to detain him at a South Carolina army brig where he has been ever since.

The conditions in which he was kept have been horrible and the reports of his treatment have been confirmed by the military. For the first six months he was kept in an eight foot by ten foot cell with one blacked-out window, no social contact with anyone, no reading materials. An internal report shows that the guards were often ordered to take away his mattress, pillow and the Koran for his supposed misbehavior. Further, he was denied socks, hot food and had to sleep with the stiff "anti-suicide" blanket. Soon he started hallucinating, reporting "tingles" over his body, and became fearful that the government had installed microphones in his cell. In short, the man was going crazy. No charges were ever filed, he never saw a judge and was never told how long he would be imprisoned or why he had been imprisoned. But this is not where it ends. It gets worse.

As he became madder by the day, al-Marri became less cooperative and the guards "got rougher" chaining him to the floor in a fetal position, wrapping duct tape over his mouth, gagging him, and once, they tried to tape a sock in his mouth but when he started chocking they panicked, and stopped.

Al-Marri's treatment is a war crime. It constitutes the violation of United Nations Convention against Torture, the Article 5 of the Universal Declaration of Human Rights, 3rd and 4th Geneva Convention. Since the U.S. is a signatory (and a founding member) of all of these treaties, it is obligated by law not only to uphold them, but to prosecute those who violate them. The breathtaking scope of the violations in al-Marri's case is so huge that it actually might constitute not only a war crime, but a crime against humanity, which gives jurisdiction to International Criminal Court in the Hague. The ICC could thus legally issue arrest warrants for any official, including the head of state (as they just did in the case of Sudan).

I would like to conclude on a more optimistic note. Obama's victory has led to serious improvements in al-Marri's treatment: he has plenty of reading materials, watches TV (and has become a fan of Jon Stewart and Steven Colbert). In a weird twist to the whole story, the guards at the prison had bought him a huge screen TV for his cell and now he has a whole "suite" floor to himself. This also might be a way to ease al-Marri to not testify to the horrors in the prison. What is more remarkable is that he has remained sane: he followed Obama's campaign avidly, jokes with the guards, and only demands that he be tried, not released.

And that is exactly what Obama is doing. Just the other day, Obama announced that al-Marri would be transferred to the civilian custody and tried in a criminal court under the original FBI indictment. I have no idea if al-Marri is guilty of anything but as an American citizen I am truly appalled as to what my government has done to this person. So is the FBI. They are so angry that there were serious feuds between them and Bush's officials over what they saw as kidnapping of their suspect. And the Bush administration failed to charge him with anything while the FBI only in a year or so was getting ready to charge him with a bunch of charges.

Kudos to Obama for reversing the legal dictatorship of the Bush years. But this should be only the beginning. Those who violated our Constitution and possibly committed war crimes and crimes against humanity need to be held accountable just like other states have been forced to hold their leaders accountable (Milosevic).