Mixed messages from the bench
Will courts challenge racist detentions?
By G. Dunkel
The roundups and secret detentions of Arab and South Asian
men, which Attorney General John Ashcroft vowed to conduct with
the full force of the U.S. government just days after 9/11, are
now, nearly 11 months later, being challenged in court.
The fact that courts are being forced to deal with this
situation, even after a period of long delay, is due to the
dedicated work of civil rights lawyers, Arab and South Asian
community organizations, anti-war groups and other progressive
forces who refused to be cowed into silence by racist and
political profiling.
The court rulings so far are mixed. It remains to be seen
whether appeals courts and the U.S. Supreme Court ultimately
rule in favor of the government.
On July 31, Judge Colleen Kollar-Kotelly dismissed a lawsuit
filed on behalf of detainees the U.S. seized in Afghanistan and
held at the U.S. naval base at Guantanamo Bay, Cuba.
Kollar-Kotelly ruled that U.S. courts have no jurisdiction over
the 560 detainees because they are not being held on U.S.
territory.
Guantanamo Bay is illegally occupied by the U.S. military,
which claims to have an unlimited lease on the base. Washington
persists in this occupation of Cuban territory despite decades
of protest by the government in Havana and the people of
Cuba.
Kollar-Kotelly's ruling--while serving the Pentagon's
interests in regard to the detainees--also exposes the
illegitimacy of the U.S. occupation of Guantanamo.
The U.S. classifies the Guantanamo detainees as "enemy
combatants." Because of this, the Bush administration claims,
the U.S. is under no obligation to respect protections
guaranteed to prisoners of war under international law. For
example, POWs are to be released at the end of hostilities.
Kollar-Kotelly observed that the detainees are not being
deprived of "due process," since they haven't been charged with
anything. She has a point--if you ignore the fact that they are
being held illegally, indefinitely, without charges..
Stafford Smith, a lawyer for the Kuwaitis being held at
Guantanamo, told the Guardian of London that he would appeal:
"The U.S. says it is fighting this whole war in the cause of
democracy and the rule of law. What do they do then? They take
these folk to Cuba ... explicitly to deny them of any legal
rights. If that isn't ironic I don't know what is."
The Kuwaiti government funded the case to protect the rights
of its citizens held at Guantanamo.
The U.S. is so intent on preserving its control over the
prisoners that it voted against a measure in the United Nations
that would modify the Convention Against Torture to require
inspections of facilities such as Guantanamo. (Reuters, July
25)
The administration's position is that the detainees at
Guantanamo have no status. They are the personal prisoners of
the president of the United States.
The 'disappeared'
On Aug. 2, U.S. District Judge Gladys Kessler ordered the
Justice Department to release the names of the detainees,
mainly Arab and South Asian men, rounded up in the U.S. after
9/11. She gave the department 15 days to comply, which means
she expects an appeal. Groups advocating defense of civil
rights brought the suit.
Kessler upheld the government's right to withhold
information about where detainees are being held and when they
were arrested. If the government can prove to Kessler that
releasing a particular name would damage "national security,"
she said, then it can keep on withholding it.
If Kessler's order withstands the expected appeal, the total
number of people rounded up will finally be established. The
most common estimate is 1,200, although 751 also pops up in
some government affidavits. As of June 13, the Justice
Department claimed just 74 people were in custody, the others
having been released or deported.
Two weeks before Kessler made her ruling, Warren
Christopher, a former secretary of state in the Clinton
administration, attacked the government's refusal to identify
the people it had detained, saying it reminded him of the
"disappeared" in Argentina.
"I'll never forget going to Argentina and seeing the mothers
marching in the streets asking for the names of those being
held by the government," Christopher said. "We must be very
careful in this country about taking people into custody
without revealing their names. It leads us down the road of the
disappeared." (San Diego Union-Tribune, July 17)
Christopher is not just a former official. He has deep ties
to the ruling class. He is a senior partner at the law firm of
O'Melveny & Myers in Los Angeles, was vice chair of the
Johnson administration inquiry into the 1965 Watts Rebellion,
and headed the commission that investigated the police beating
of Rodney King in 1991.
What Christopher is telling the ruling class is that if it
goes on trampling the rights of people of color and political
dissidents, actions like the April 20 demonstration which
brought 100,000 people to Washington to defend Palestine and
the civil rights of Arabs and South Asians will be repeated and
amplified.
People will defend their rights in the streets as well as in
the courts.
Reprinted from the Aug. 15, 2002, issue of
Workers World newspaper
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