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.