Time for us to return to due process of law

Part 1 of 2The Constitutional imperativeMark Twain said that the Classics, that is the Great Books, are those that everyone quotes or refers to, but almost no one actually reads, or really thinks about. Great Documents surely include the U.S. Constitution, the Declaration of Human Rights, the Geneva Conventions and the International Convention Against Torture. Practically no one reads these documents or thinks about what they might mean in practice, so they fit Twain’s definition rather well.As Charles Church has pointed out in his recent Guantanamo piece in The Lakeville Journal (May 8), since 9/11 the U.S. has managed, directly or indirectly, to detain, that is to say to incarcerate indefinitely and without due process of law, right of trial, or habeas corpus (right of appeal to a real court of law), several hundred suspects. At the time of Church’s visit to Guantanamo, just six prisoners in two high-profile cases had regularly scheduled proceedings before military commissions convened there. One of these is Abd al Rahim al Nashiri, accused, probably rightly, of plotting attacks on two ships, the USS Cole and the MV Limburg.As to the rest of the detainees, these are persons imagined to have engaged in acts of terrorism, or of belonging to a state-defined terrorist group. Church notes that with a handful of exceptions, practically none of these prisoners have been shown to have ever engaged in a criminal terrorist activity against the U.S. A few detainees have pled guilty to lesser charges in order to stop being beaten and tortured by their enhanced interrogators. Such confessions can hardly stand up in a legitimate court of law. So even if the U.S. Congress didn’t obstruct it, referral to the civilian courts of law becomes a problem. The use of substitute military commissions doesn’t appear to have solved the problem of illegitimacy of such trials in the first place. The previous administration’s choice of off-shore incarceration at Guantanamo or other dark sites in order to escape U.S. responsibility violates a long-standing legal principle, since the time of King James of England, that jurisdictional responsibility for human rights, due process and habeas corpus extends anywhere in the world where the state has actual control. Before President Barack Obama stopped the practice, the U.S. had clearly been guilty of promoting and engaging in the crime of systematic torture as defined by international treaty law. Furthermore, the United States has failed to investigate and prosecute torturers as required by signed treaties, such as the International Convention Against Torture. The U.S. Constitution (Article VI) declares such treaties to be “the supreme law of the land,” and “ binding all judges, laws and states” of the USA. Thus the U.S. Constitution imports the international laws of human rights into the national laws of the United States. There can be no doubt about, or exception to, the clear words and meaning of the U.S. Constitution on this legal principle.Nevertheless, there has been a concerted effort by some to obfuscate the due-process meaning of the U.S. Constitution with the help of euphemistic vocabulary, such as “detainment“ (for imprisonment) and “enhanced interrogation” (for torture). The mainstream media in the U.S. has tended to focus on just one technique, waterboarding. Nevertheless, as recently revealed by leaked documents and photographs, there are other less publicized forms of torture such as shackling to chains on prison cell walls overnight, without feet touching the floor, which has a much higher pain and fatality risk rate. Misleading official statements to the contrary, to date no U.S. official has been able to point to a single case where torture prevented an eventual act of criminal terrorism against the United States. It’s little wonder, then, that President Barack Obama has ruled out torture for all future time.Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.