Freedom is a hype in the U.S.

Trial and error: The illusion of freedom in America

Law professor Bill Cohn on the irony of American gulags in the former Soviet bloc

Those so deft at issuing U.S. government denials have not denied reports that the U.S. is operating secret prisons in Central Europe. The Czech governmıent has denied holding U.S. prisoners in “black sites” but The Washington Post has reported that eight countries, including some in Eastern Europe, are doing just that.

And so there is a distinct possibility that in this region prisoners merely suspected of wrongdoing are indefinitely locked away incommunicado under the guise of American justice. How ironic if the purported leader of the free world, the post-World War II liberator of Europe, should practice the worst transgressions of the former totalitarian regimes that occupied these lands.

Virtually nothing is known about those detained at these black sites (as they are referred to in classified U.S. documents), how they are interrogated or how the length of their incarceration is determined. These facilities, reportedly part of a global covert prison system for the Central Intelligance Agency, represent a new phase in the outsourcing of justice.

The expansion to Europe of the so-called rendition program, designed to avoid the jurisdiction of U.S. courts and the application of U.S. law, is troubling, not least of all for students of history. Holding people in isolation in secret prisons, unlawful in the United States, reeks of Stalinist gulag tactics.

To readers saying “This is just more anti-American Bush bashing,” let me reply: For more than three years I have been in Central Europe professing the virtues of the U.S. constitutional law systém, carrying the U.S. Constitution in my briefcase, advocating the efficacy of the U.S judicial system to European law practitioners and espousing the intrinsic value of the rule of law and Bill of Rights. These convictions are deeply held, and so I speak out when these values are degraded. I am part of a larger community facing great challenges in our labors. The American Bar Association began its Central European and Eurasian Law Initiative 15 years ago in order to assist emerging democracies in developing institutions vital to the administration of justice.

The United States is a country ruled by law, not men. Nobody is above the law, and everybody is entitled to due process — a fair hearing, their day in court. Honoring that tradition, the Supreme Court ruled in 2004 that prisoners held at Guantanamo Bay in Cuba can access U.S. courts to challenge their confinement, thereby dealing a major blow to the assertion of sweeping presidential powers to indefinitely hold “enemy combatants.” And honoring that tradition, the U.S. Congress made a law in 2005 requiring humane treatment of prisoners at facilities run by U.S. military and intelligence agencies. The White House has failed to obey the ruling of the high court, and has stated its intention to veto the anti-torture legislation.

Our constitutional system of checks and balances was aimed at preventing monarchic abuses of power. Only the power of judicial review is left unchecked. When Bush v. Gore handed “W” the keys to the White House, the Florida and U.S. branches of government obeyed that ruling. When that very same court ruled the indefinite detention of prisoners at off-shore locations unlawful, the White House dragged its feet, treated the relevant rulings with contempt, and has gone stealth with ever-increasing secrecy in its prison operations.

When John McCain, Republican senator from Arizona, pled for decency and honor, he spurred a dormant Congress to fulfill its constitutional role as 90 of the 100 senators voted to ban the “cruel, inhuman and degrading” treatment of prisoners at U.S.-run or directed facilities. McCain, a prisoner of war in Vietnam, told how the only thing that sustained him and fellow prisoners undergoing torture was the knowledge that Americans were different than that.

A 2004 report by the International Committee of the Red Cross (ICRC) notes that up to 90 percent of detainees in Iraq were arrested by mistake and that inmates were routinely mistreated by being kept naked in dark, empty cells; subjected to brutality, humiliation, threats of imminent execution and other abuses “tantamount to torture.” The ICRC report concludes that “methods of physical and psychological coercion were used by the military intelligence in a systematic way to gain confessions.” Recent reports from Afghanistan, Guantanamo and Egypt are equally disturbing.

I teach my students the significance of the presumption of innocence; that the Fourth, Fifth and Sixth amendments to the U.S. Constitution are built upon the precept that the true measure of a society is how it treats its most vulnerable and downtrodden, and that, likewise, the First and 14th amendments protect the rights of often-unpopular minorities from the tyranny of the majority; and, here in Central Europe, I emphasize the difference between accusatorial and inquisitorial justice.

In Prague, the home of Kafka, we have no difficulty recalling the inquisitorial system, which imposes the vast power of the state to lock up the accused unless he can prove his innocence.

In contrast, the accusatorial system demands that the accuser produce sufficient evidence to establish that the accused has broken the law. The accused is therefore guaranteed specified substantive rights and procedural protections.

The U.S. Constitution protects the rights of all people, not just the rights of its citizens or permanent residents. The U.S.A. Patriot Act has been decried for eroding civil liberties, but it has also demoted non-U.S. citizens to second-tier status by expanding the detention and deportation powers of the federal government. If the attorney general asserts “reasonable grounds to believe … the alien is engaged in activity that endangers the national security of the U.S.” then that non-citizen may be held indefinitely. The Homeland Security Department, which took over immigration matters from the Immigration and Naturalization Service in early 2003, has (mis)used this provision in order to routinely detain asylum seekers. Thus, thousands who have never been accused of crimes are being held indefinitely in jails in the United States.

The attorney general notoriously characterized the Geneva Conventions of 1949 (GC) as “quaint.” The ICRC found the United States guilty of systematic and serious violations of the GC (Convention III on the treatment of prisoners of war and IV on protecting civilians in wartime). While it may be unpopular to cite international law, the GC protect U.S. forces abroad. As we do not live in isolation, international law should help to inform our norms and values, especially if we aim to win hearts and minds.

International law prohibits incommunicado detention and requires that families and governments be told prisoners’ whereabouts, and that the ICRC has access to all detainees and places of detention. Violations have been reported in Iraq, Guantanamo and Afghanistan, but black site prisons take this violation to a new level.

Has Stalinist-style justice returned to Central Europe in the name of freedom and democracy? People here are well aware of the unreliability of forced confessions. Under totalitarianism, those accused could either confess their sins or have their punishment and degradation ratcheted up ad infinitum. As for counterterrorism, torture does not produce reliable intelligence. It does, however, degrade our principles.

The U.S. Constitution is a living document. It creates a brilliant playing field for the interaction of all members of society — and allows for trial and error. The errors are evident. We now face a trial. The free press and the citizenry bear a special responsibility to steer a path true to our constitutional values. The world is watching, and the outcome makes a world of difference.

— The author, a member of the California Bar, practiced law in San Francisco for a decade, and is a professor at the University of New York in Prague and adviser to a leading international law firm in the Czech Republic.


  1. I am touched by your naivity in the strength of the American constitution. Unfortunately, as you point out, it has been broken many times by the present regime. So what use is it? If it cannot be enforced it has no value.

    The supreme court decision which put Bush into power demonstrated that the country doesn’t have an independent judiciary. Elections are managed by a totally opaque electronic voting system controlled by companies friendly to one of the main parties. The country breaks international law with total impunity. And the vice president has asked for torture of prisoners to be legal. The events of 9/11 (such as the quite basic question of why the buildings actually fell down) have not been properly investigated. More seriously, the US mainstream media is not interested in carrying out such an investigation: they are part of the problem, rather than part of the solution.

    I would personally feel much more comfortable if we could stop the pretense that the US is still a democracy and just get real.

  2. Clearly a serious look needs to be taken at the practice Mr. Cohn describes in his article but his use of the terms like “gulag” to describe Bush administrations efforts to deal with global Jihad is frankly ridiculous and actually reminds one of the rhetorical style totalitarian regimes and their appologists like so much. See for instance Chomsky’s description of US as ” greatest terrorist state in the world ” and similar sentiments expressed by Sadam Hussein apologist George Galloway. Surely detention without trial of weapon carrying etc member of a terrorist organization is not the same as detention of an author or journalist who criticises his government. Its quite ironic to see these American leftists use this radical left speak in Czech Republic of all places; quite a nerve.
    Best Regards Zdenek Vajdak

  3. Professor Cohn, like so many American liberals, betrays his claim of political objectivity with the standard boilerplate attack, claiming that the US Supreme Court “handed “W” the keys to the White House”.

    If that is truly the extent of Professor Cohn’s knowledge on that pivotal case (as anyone remotely familiar with the details knows, it was not that simple), I suggest that readers discount any further conclusions he puts forth in this article. The professor can sit in his ivory tower and comment from afar on the critical issues related to terrorism affecting the US, but in the real world, his platitudes ring hollow for those of us trying to avoid the next deadly attack by the fanatics he is so intent on defending.

  4. Unfortuneatly Mr. Cohn clearly has an anti-American agenda. This is too bad because the subject of his article is intersting but he uses in an extreme manner as an opportunity to critize of the US to suit that agenda. He is also flat out wrong to assert that his “opinion” an absolute fact that the US Consitution is a “living document”. This is not so according to several Justices of the United States Supreme Court. Frankly I am for more objective columns in the Post.
    US Supreme Court

  5. I believe that the Constitution is our greatest strenght and our greatest weakness as a country. I gives us guidelines as to how a democracy should be, but the real problem is mainstream media and advocates of individual rights are trampleing on it. Americans are turning a blind eye to the greater good of the people and more worried about what they can get and “to hell” with everyone else. The apathy and blind following of what is given us nightly in the news is appalling. We would rather turn away than face what our country has become.

  6. The paranoid rants of the pseudo-patriotic Americans posting here are quite amusing to read, because their paranoia mirrors Stalinist paranoia to an amazing degree. And as for the American Gulag, the pseudo-patriots helped create it, and now that the sordid cancer has been exposed, the aiders and abetors of tyranny shriek with self-righteous self-indignation. One day their heroes, Chertoff, Gonzales, Rumsfeld, Cheney and Bush, will be remembered in the same breath as Dzherzhinsky, Beria, Molotov, Lenin and Stalin, and an American version of Solzhenitsyn’s _Gulag Archipelago_ will be published to memorialize the indecency of the Bush regime.

  7. This article is a welcome reminder of both why we originally came here, and why we are here now.

    Like many other idealistic young Americans, I came here in 1990 to help spread democracy and the rule of law. Human rights, free speech, and basic respect for the inherent dignity of all people motivated not just me, but thousands of others in those early days.

    The Czechs welcomed us with open arms. We were respected, even loved, for having come here to work.

    What a difference 15 years makes!

    Now, I’m here because the Czech Republic is more free than my home. America has become a land where the wealthy and powerful have complete impunity. Those who disagree with the administration can be put in jail if they do so too vehemently in public. Our president openly declares his belief in “intelligent design” and other religious superstitions.

    Instead of my beloved country being the bastion of human rights, rationality, and freedom, we are now the biggest violator of human rights and freedom in the world. We have been taken over by religious fanatics.

    This disgusts me. This disgusts my Czech friends. This also endangers our lives, as travelling around the world it is not wise to advertise the fact that I come from America. I speak Czech as much as possible, because I’m ashamed to admit that, yes, I come from the land of torture and secret prisons.

    What can we do Professor? Is it possible to sue on behalf of these hidden, forgotten prisoners? Can we take W. to court? Should we start applying for asylum here?

    When I was in the military, we learned in basic training that torture is not only wrong, but it is against the Uniform Code of Military Justice. If an officer gives the order to torture, nobody is obliged to follow it because it is illegal.

    What happened? These inhuman violators of basic human dignity have a lock on all three branches of the government. Anyone who is not a millionaire is a fool to even think about running for public office. Changing the system legally seems completely impossible.

    Although the administration appears to have made it illegal to openly criticize their actions, I’m ready to break the law to do what is right.

    Bush must be stopped! His puppetmaster, Cheney, must be stopped!

    What can I do about it? Absolutely nothing it seems. When there is no legal recourse, is an illegal recourse immoral? Isn’t it about time for a revolution in America?

    Hopefully, we can have a velvet revolution at home, and depose these criminals who are leading the whole world to hold us in contempt and scorn. Otherwise, is violent revolution out of the question? If even addressing this question is now an open invitation for the secret police to lock me up forever, the time has come for extreme action.

    When even broaching this idea puts me in danger of “disappearing”, then we do indeed have gulags again in the world, but this time it’s my own beloved country that is running the concentration camps.

    My own government has become what I have always despised; an illegal invader, lying to its own people to get permission to go to war, destroyer of human rights which considers itself above all laws. Bush and Cheney are now, in fact, war criminals.

    Bush and Cheney ought to be tried, found guilty, and suffer the same fate as the Nazi swine at Nuremberg, live on Fox Television.

  8. I would just like to say first of all to all who criticize the US for how it handles the War of Terror, Back OFF! The US and Tony Blair are the only ones Brave enough to confront Terrorism. When your country is in trouble or gets attacked, who are you going to call? That’s right the Red, White, and Blue. Let’s get real. America is not perfect never claimed to be perfect. But being American means we help those in need and we go after those who seek to harm us. Thats what it means to an American.

    Also to the writer of the article, It ashamed you couldn’t have stayed in San Fran. You give us all a bad name.

    Thank you for letting say my piece. By the way Happy Thanksgiving!

  9. Thank you for speaking out for the other America that still must exist out there even though it is obliterated by the image of the criminals that took over the White House.

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