No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 February 2017
To know where we are, we have to see ourselves from a distance. Otherwise the remarkable becomes commonplace.
I see the Military Commissions Act of 2006 from a temporal distance, specifically from the era of state-terror regimes in Latin America during which I served for eight years (1976 -1983) as a member of the Inter-American Commission on Human Rights, a principal arm of the Organization of American States (OAS). Those were the years in which governments scattered across the South American continent and the Central American isthmus, anticipating the policy views announced by United States Vice President Dick Cheney in an interview on “Meet the Press” in 2001, decided to go to what Cheney called the “dark side,” or, in the case of those who had long made that side their principal area of operations, decided to move a larger proportion of their respective peoples into it. Throughout the period, reports about the hell on earth my six colleagues and I exposed (in the somewhat stilted idiom official agents are driven to adopt) would appear episodically in the American press. Their implicit subtext was that these horrors were perpetrated by brutes as alien to American life as the venues where they operated.
1 Jane, Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition “ Program, New Yorker, Feb. 14, 2005, at 106, 107.Google Scholar
2 See, e.g., John, Dinges, The Condor Years: How Pinochet and His Allies Brought Terrorism to Three Continents (2004).Google Scholar
3 See, e.g., Mark, Danner, The Massacre at El Mozote: A Parable of the Cold War (1994).Google Scholar
4 See, e.g., Susanne, Jonas, The Battle for Guatemala: Rebels, Death Squads, and U.S. Power (1991).Google Scholar
5 Norman, Podhoretz, How to Win World War IV, Commentary, Feb. 2002, at 19.Google Scholar
6 Inter-American Commission on Human Rights [IACHR], Report on the Status of Human Rights in Chile, OEA/Ser.L/V/II.34, doc. 21, corr. 1, at 2 (1974).
7 The observation is made from personal knowledge acquired while I served in 1975-1976 as special assistant to the assistant secretary of state for inter-American affairs.
8 The phrase was peppered into the discourse of many of the interlocutors of the Inter-American Commission on Human Rights during its visit to Argentina in 1979.
9 A counterterrorism expert advising the U.S. Department of State sees the terrorist threat as a multitude of insurgencies. George, Packer, Knowing the Enemy, New Yorker, Dec. 18, 2006, at 60, 62–65.Google Scholar
10 In 2001 the United States experienced approximately thirty thousand suicides, sixteen thousand homicides, and eighteen thousand deaths caused by drunk drivers. Louise Richardson, What Terrorists Want 147 (2006).
11 Airline travel is high. See Micheline, Maynard, Airlines Find Help in Flights Overseas, N.Y. Times, July 5, 2005, at C1.Google Scholar The stock market is higher than in 2000. See Paul, J. Lim, The Stock Market Is Still Pressing the Reset Button, N.Y. Times, May 8, 2005, §3, at 7.Google Scholar Taxes are lower. See David, Firestone, Dizzying Dive to Red Ink Poses Stark Choices for Washington, N.Y. Times, Sept. 14, 2003, at A1.Google Scholar And so on.
12 For an illustrative channeling of the popular mind on the American Right, see Ann, Coulter, Airport Security Acted Appropriately with Imams, Hum. Events, Dec. 4, 2006, at 6.Google Scholar
13 See Lindsey, Gruson, 6 Priests Killed in a Campus Raid in San Salvador, N.Y. Times, Nov. 17, 1989, at A1 Google Scholar; Robert, Pear, U.S. Official Links Salvadoran Right to Priests’ Deaths, N.Y. Times, Nov. 18, 1989, at A1.Google Scholar
14 See generally IACHR, Report on the Situation of Human Rights in the Republic of Guatemala, OEA/Ser.L/ V/II.53, doc. 21, rev. 2, at 18-38 (1981).
15 See R. Jeffrey, Smith & Josh, White, General’s Speeches Broke Rules: Report Says Boykin Failed to Obtain Clearance, Wash. Post, Aug. 19, 2004, at A23.Google Scholar
16 Bernard, Lewis, The Revolt of Islam, New Yorker, Nov. 19, 2001, at 50.Google Scholar
17 Dan, Herbeck, 5 from Lackawanna Six Sent to Indiana Prison, Buffalo News, Dec. 28, 2006, at B1.Google Scholar
18 Mark, Hosenball, Carmen, Gentile, & Rebecca, Wakefield, Terror Plot Takedown: The Feds Foil a Homegrown Plan. Will the Charges Stick? Newsweek, July 3, 2006, at 42.Google Scholar
19 Neil, A. Lewis, Lawyer Upset by Treatment of Ex-Chaplain for Detainees, N.Y. Times, Oct. 25, 2003, at A14.Google Scholar
20 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (West 2006) (to be codified at 10 U.S.C. §§948a-950w and other sections of titles 10, 18, 28, and 42) [hereinafter MCA].
21 10 U.S.C. §948b(a).
22 10 U.S.C. §948a(l).
23 IACHR, Report on the Situation of Human Rights in Argentina, OEA/Ser.L/V/II.49, doc. 19,corr. 1 (1980) [hereinafter Argentina Report], available at <http://www.cidh.org/publi.eng.htm=.
24 IACHR, Report on the Situation of Human Rights in the Republic of Colombia, OEA/Set .L/V/II.53, doc. 22 (1981) [hereinafter Colombia Report], available at id.
25 From 1963 to 1964,1 served as special assistant to the commander of the Somali National Police and as instructor in law and unarmed self-defense at the Police College in that country.
26 Argentina Report, supra note 23, ch. VI(C)(1), at 222 n.6.
27 Id., para. (2), at 223, & Conclusions, sec. A(l)(d), at 263.
28 Colombia Report, supra note 24, ch. V(C)(2), at 137.
29 The M-19 subsequently accepted an amnesty, disarmed, and became active in electoral politics as a party of social and economic reform. Thereafter, many of its leading members were assassinated by right-wing death squads believed to be associated with the country’s drug mafia.
30 Colombia Report, supra note 24, ch. V(G)(7), at 181.
31 Id. at 181, & Conclusions, para. 7, at 220.
32 IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II. 116, doc. 5, rev. 1, corr., Executive Summary, para. 18 (2002), available at <http://www.cidh.org/terrorism/eng/toc.htm=.
33 Id., pt. Ill, para. 104 n.291; see also id., para. 256.
34 MCA, supra note 20, 10 U.S.C. §948r(c).
35 The Defense Department has indicated that approximately eighty of the hundreds of persons who have been detained in Guantánamo, Afghanistan, and secret CIA-run detention centers since some time before December 30, 2005, will be tried by these tribunals.
36 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 UNTS 85.
37 10 U.S.C. §950v(b)(12)(B)(i).
38 Ireland v. United Kingdom, 25 Eur. Ct. H.R. (1978).
39 Selmouni v. France, 1999-V Eur. Ct. H.R. 149, para. 101.
40 Detainee Treatment Act of 2005, Pub. L. No. 109-148, sec. 1003(d), 119 Stat. 2739 (to be codified at 10 U.S.C. §2000dd).
41 MCA, supra note 20, sec. 6(b) (revising War Crimes Act to add new subsection prohibiting both torture and cruel or inhuman treatment as violations of common Article 3 [18 U.S.C. §2441 (d)( 1) (A) & (B)], and defining term “serious physical pain or suffering” for purposes of the latter as involving “extreme physical pain” [18 U.S.C. §2441(d)(2)(D)(ii)]).
42 10 U.S.C. §948r(c), (d).
43 Douglas Jehl, Questions Left by C.I.A. Chief on Torture Use, N.Y. Times, Mar. 18, 2005, at Al.
44 American Civil Liberties Union, FBI e-mail (Aug. 2, 2004), available at <http://wvvTv.adu.org/torturefoia/released/FBI.121504.5053.pdf=. The FBI document, dated July 29, 2004, was released to the ACLU by the government on August 2, 2004, per a Freedom of Information request.
45 Id.
46 Steven, Miles, Medical Ethics and the Interrogation of Guantanamo, Am. J. Bioethics, Mar. -Apr. 2007, at 1, 2.Google Scholar
47 MCA, supra note 20, 10 U.S.C. §949a(b)(2)(E).
48 Id. §949d(f).
49 Tom, J. Farer, Restraining the Barbarians: Can International Criminal Law Help:’ 22 Hum. Rts. Q. 90, 94–95 (2000).Google Scholar
50 Human Rights Watch, United States: Guantánamo Two Years On—U.S. Detentions Undermine The Rule of Law (2004), available at <http://hrw.org/english/docs/2004/01/09/usdom6917.htm= Tim, Golden, Voices Baffled, Brash and Irate in Guantanamo, N.Y. Times, Mar. 6, 2006, at A1.Google Scholar
51 The Torture Papers (Karen, J. Greenberg & Joshua, L. Dratel eds., 2005).Google Scholar
52 Karen, J. Greenberg, Guantanamo Is Not a Prison: 11 Ways to Report on Gitmo Without Upsetting the Pentagon (Mar. 9, 2007), available at <http://www.lawandsecurity.org/get_article/?id=67=.Google Scholar
53 Id.
54 Neil, A. Lewis, Official Attacks Top law Firms over Detainees, N.Y. Times, Jan. 13, 2007, at A1.Google Scholar Mr. Stimson resigned on February 2, 2007.
55 David, Nason, Mori Charges Could Be Laid After Trial, Weekend Australian, Mar. 3, 2007, at 3.Google Scholar
56 Jesselyn, Radack, A Blacklist’s Real Face, Nat’l L.J., Feb. 19, 2007, at 23, 23.Google Scholar
57 Id.
58 Michael, Isikoff & Mark, Hosenball, Terror Watch: The Case of the Missing Movie, Newsweek, Feb. 28, 2007, at <http://www.msnbc.msn.com/id/17389175/site/newsweek/=Google Scholar.
59 Rasul v. Bush, 542 U.S. 466 (2004).
60 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
61 Mark, Denbeaux & Joshua, W. Denbeaux, No-Hearing Hearings—Csrt: The Modern Habeas Corpus? (Seton Hall Public Law Research Paper No. 951245, Dec. 13, 2006), available at <http://ssrn.com/abstract=951245=Google Scholar.
62 Id. at 4-6.
63 Id. at 15.
64 Id. at 5.
65 Id.
66 Id.
67 Id. at 6.
68 Mayer, supra note 1, at 120.
69 Id.
70 Jeffrey, Toobin, Killing Habeas Corpus, New Yorker, Dec. 4, 2006, at 46, 52.Google Scholar
71 Denbeaux & Denbeaux, supra note 61, at 36.
72 Id.
73 MCA, supra note 20, §949d(f )(1).
74 Id. §949d(f )(2)(B) (emphasis added); see also §949j(c)(2).
75 David, Johnston, C.I. A. Tells of Bush s Directive on the Handling of Detainees, N.Y. Times, Nov. 15, 2006, at A14.Google Scholar
76 See Human Rights Watch, Making Sense of The Guantanamo Bay Tribunals (2004), available at <http://hrw.org/english/docs/2004/08/16/usdom9235_txt.htm=Google Scholar; see also Mark, Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data 10 (n.d.), at <http://law.shu.edu/aaafinal.pdf=Google Scholar (arguing that” [according to the Government, one can be a conscripted (and therefore presumably unwilling) member of the Taliban and still be an enemy combatant”); Denbeaux & Denbeaux, supra note 61.
77 Doyle, McManus & James, Gerstenzang, The Conflict in Iraq; Bush Delivers the News—With a Sobering Warning, L.A. Times, June 9, 2006, at A1.Google Scholar
78 Dana, Priest & Robin, Wright, Cheney Fights for Detainee Policy: As Pressure Mounts to Limit Handling of Terror Suspects, He Holds Hard Line, Wash. Post, Nov. 7, 2005, at A1.Google Scholar
79 President Bush holds to this belief in his statement upon signing into law the Detainee Treatment Act on December 30, 2005. George, W. Bush, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 41 Weekly Comp. Pres. Doc. 1918, 1919 (Jan. 2, 2006).Google Scholar
80 Petition for Habeas Corpus on Behalf of Carlos Mariano Zamorano (Fed. Ct. App. in Crim. & Correctional Matters, Buenos Aires, Apr. 1977). See Argentina Report, supra note 23, ch. VI(b)(6), at 229.
81 See Juan de, Onis, Argentine Envoy Reported Seized, N. Y. Times, July 20, 1977, at 4 Google Scholar (describing disappearance of Héctor Hidalgo Solá on July 18, 1977).
82 Argentina Report, supra note 23, ch. VI(E)(6), at 230 (translated from the original Spanish by the staff of the Commission).
83 Id.,ch. 1(E)(1), at 23.
84 Id., para. (4), at 26-27 (emphasis added).