Colin Powell recently made headlines by saying the detention center at Guantanamo Bay, Cuba, should be closed. Unlike others, he believes those detainees should remain in custody; they should merely be moved to the United States. Howevever, his argument lends credibility to voices on the extremist Left whose motives are more dubious.
The Center for Constitutional Rights and Amnesty International have joined with several other terrorist advocacy groups in publishing a report entitled Off the Record: U.S. Responsibility for Enforced Disappearances in the "War on Terror." This report, released on June 7, 2007, is supposed to shock our collective conscience by purporting to provide the names and details of thirty-nine suspected terrorists who are believed at one time to have been held in secret U.S. custody. The truth, however, is that the secret detentions of selectively targeted terrorist leaders can save many innocent lives.
To be sure, the United States has used secret detention facilities in secure locations outside of U.S. territory from time to time. The Bush administration acknowledged this fact in September 2006 when it announced that it had moved fourteen secretly held ‘high value’ suspected terrorists from CIA prisons at undisclosed locations to the Guantanamo Bay military prison. In addition, a top aide to Osama bin Laden was later moved to Guantanamo in April 2007 after being held secretly by the CIA for several months.
In his speech on the subject, President Bush described how the temporary detention of certain terrorist ringleaders in secret facilities led to invaluable life-saving intelligence:
Once captured, Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed were taken into custody of the Central Intelligence Agency. The questioning of these and other suspected terrorists provided information that helped us protect the American people. They helped us break up a cell of Southeast Asian terrorist operatives that had been groomed for attacks inside the United States. They helped us disrupt an al-Qaeda operation to develop anthrax for terrorist attacks. They helped us stop a planned strike on a U.S. Marine camp in Djibouti, and to prevent a planned attack on the U.S. Consulate in Karachi, and to foil a plot to hijack passenger planes and to fly them into Heathrow Airport and London's Canary Wharf.
The terrorist advocates’ report alleges, on the basis of mostly third-hand evidence, that the U.S. secret detention program is far more pervasive than has been officially acknowledged to date. Even if true, shouldn’t the opportunity to save innocent lives outweigh the inconvenience and possible psychological harm to individuals allied with stateless terrorist networks operating at will, outside the normal conventions of war, against American soldiers and civilians alike? Shouldn’t some of the world’s vilest offenders of the norms of civilized society be temporarily isolated from the society they wish to destroy, at least until we can find out what they know of the plans to carry out their nihilistic wishes? Do we really want to tip off the terrorist groups, who are planning more attacks against us, that their key henchmen are in custody and to provide family member accomplices access to the detainees’ whereabouts, even if this were to end up allowing the terrorist groups to elude further disruptions of their plans and to learn more about our counter-strategies?
One of the terrorist suspects mentioned in the terrorist advocates’ secret detention report, for example, is an Egyptian national who was reported to have told his interrogators about an al-Qaeda plan to bring nuclear materials to the United States via Mexico for use against U.S. targets. The terrorist advocates would have preferred to let him lawyer-up, even if that meant letting the al-Qaeda plan to proceed to its horrible conclusion.
Another luminary mentioned in the terrorist advocates’ report is the son of the number two al-Qaeda operative, Ayman al-Zawahiri. What the terrorist advocates neglect to mention in their report is that al-Zawahiri's son Khalid, who was seized with twenty other suspected foreign militants near the border of Afghanistan, has given crucial information on the location of al-Qaeda leaders that may have contributed to saving many innocent lives.
All the terrorist advocates want to know is that terrorist suspects like Khalid are safe and sound. They reject the very idea of temporary secret detentions in any circumstances, even if thousands of lives were saved as a result. They demand that the United States account publicly for every one of the detainees who was ever held in a secret detention facility by or with the knowledge of U.S. authorities. In this connection, the Center for Constitutional Rights and two other sponsors of the secret detention report have filed a lawsuit in U.S. federal court under the Freedom of Information Act seeking disclosure of information concerning “disappeared” detainees. They demand in their report that all current detainees in any secret facilities be turned over immediately to “a court that meets international fair trial standards or release them.” They also demand that the United States provide “reparations, including compensation, to individuals it has secretly detained.”
All of these positions of the terrorist advocates piggyback on the United Nations’ International Convention for the Protection of All Persons from Enforced Disappearance (“Enforced Disappearance Convention”), which the General Assembly passed by consensus last December.
“Enforced disappearance” is defined in this U.N. treaty as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State Party or by persons or groups of persons acting with the authorization, support or acquiescence of the State Party, followed by a refusal to acknowledge the deprivation of liberty and concealment of the fate or whereabouts of the disappeared person. The Enforced Disappearance Convention outlaws secret detention and requires that State Parties hold all detainees in officially recognized places, maintain up-to-date official registers and detailed records of all detainees, allow them to communicate with their families and counsel, and give access to competent and authorized authorities. The Enforced Disappearance Convention also provides the basis in international law for reparations for the ‘victims’ of the secret detentions.
Most importantly, for purposes of the ongoing War on Terror, the Enforced Disappearance Convention states in Article 1 that “[N]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.” If read in a literal, absolutist fashion, the Enforced Disappearance Convention would leave no room for any State Party to the treaty to use temporary secret confinement as a means of eliciting valuable intelligence from detained terrorist leaders in time to benefit from it, even where thousands of lives could be saved by concentrated interrogation. That is precisely the result that the terrorist advocates want, irrespective of the consequences.
Thus, the United States acted sensibly when it declined to endorse the Enforced Disappearance Convention as written, saying its text did not meet U.S. expectations. Until we decide to sign and ratify the treaty, we are not bound by its terms. Surely, we should demand no less an exception for acting in response to a national emergency than appears today in the U.N.’s International Covenant on Civil and Political Rights, which the U.S. has ratified (with key reservations) and which allows State Parties to take measures derogating from their obligations “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” The continuing post 9/11 threat to our country’s organized existence by al-Qaeda and other global terrorists, who are intent on gaining access to weapons of mass destruction to destroy us, surely qualifies as such a public emergency. And this emergency has been officially proclaimed by the president and Congress pursuant to our Constitutional processes.
Even the terrorist advocates do not allege that the United States has engaged in the kind of widespread or systematic practice of enforced disappearance against any civilian population that international law clearly defines as a crime against humanity. At most, all that they have shown is that we take harsh measures to isolate the vermin who are the most likely to have engaged in precisely the sort of systematic practice of enforced disappearance and murder against civilians that true human rights activists should be most concerned about stopping.
The terrorist leaders and their state sponsors mock the very institutions of international law that the naïve human rights activists are invoking to protect them. Consider Iran’s notorious Evin Prison, where “enforced disappearance” of political dissidents is all too common. It is the hell-hole where the Iranian-American citizen Haleh Esfandiari, an academic, has been held incommunicado on trumped up spying charges. She was forcibly detained during a visit to Iran to see her 93-year-old mother who is gravely ill. We pray that she will not suffer the fate of Iranian-Canadian photojournalist Zahra Kazemi, who died from a head injury suffered during beatings while in custody in Evin. Doctors examining Kazemi found evidence of rape, torture with fingernails torn out, toes crushed and skull fracture. A former Iranian student, Akbar Mohammadi, was suspended by his arms and beaten unconscious, dying during his captivity after he was administered a mysterious drug. Many other Iranian political prisoners have died under torture in Section 209 of the prison, run by the Ministry of Intelligence of the Islamic Republic. Some prisoners have ended up being executed by firing squads or hanged. Some have simply vanished – permanently. Iranian human rights groups have pleaded in vain for an international investigation of conditions at Evin Prison, but we are the villains in the eyes of the terrorist advocates.
Even worse, al-Qaeda terrorists in Iraq follow a torture manual showing how to put a drill through a man’s hand and how to chop off a forearm with a meat cleaver. The manual also depicts how to apply blowtorches to the skin, hot irons to the chest and knives to the eyeball. And, of course, when all is said and done, al-Qaeda’s choice means of execution of their prisoners, without even the pretence of a trial, is beheading.
Those who argue that we are stooping to the level of our enemies are suffering from a serious case of reality deficit disorder. We are far from perfect, but we do not revel in death and destruction as our enemies do. We do not deliberately target innocent civilians or use them as human shields in violation of the most elementary laws of war as our enemies do. In sum, as the editors of National Review have written in their June 25th issue, “our enemy inhabits a moral universe that has no overlap with our own.”
We are facing a symbiotic global alliance of stateless fanatics and rogue state despots who manipulate the vulnerabilities created by our freedoms to attack our vital defenses. Against a well-funded global network of psychotics who can get their hands on horrific weapons to carry out their apocalyptic purposes, our traditional notions of law enforcement and due process are useless. Indeed, they are turned against us by homicidal fanatics whose catastrophic goals are limited only by the means of destruction they possess. The key to our success is to stay ahead of the enemy and keep them guessing on our next moves, just as they have capitalized on their use of surprise. The use of secret detention facilities for selected ‘high value’ terrorist suspects has yielded treasure troves of valuable intelligence that has no doubt helped save many thousands of innocent lives.
As proven during the stresses of the Civil War and World War II, when Presidents Abraham Lincoln and Franklin D. Roosevelt tested the outer limits of civil liberties of our enemies in order to protect all of our freedoms in the long run, our Constitutional system is strong enough to survive the temporary use of secret detention facilities to save lives. If the terrorist advocates have their way and turn international law into an instrument of our own destruction, we may not survive as a free people.