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This chapter focuses on the president's use of prerogative powers and the treatment of detainees in the war on terror. President Bush asserted his prerogative power in interpreting and reinterpreting conventions and customary international law obligations, and in interpreting the obligations of government officials to execute faithfully statute law, the Uniform Code of Military Justice, and various directives. It is argued that officials at the highest levels of government made decisions based on the constitutional authority of the president (as administration lawyers defined it) that left open the probability that detainees would be subjected to inhuman treatment and torture as defined by international law. The chapter explores why the issue of the treatment of prisoners has not risen to the level of an Iran-Contra affair and what the reaction tells us about the politics of prerogative power.

Article 5 of the European Convention makes it clear that detention may occur even if no arrest ensues (as with powers to examine travellers at ports, or to stop and question people on the streets), but it does not explicitly say how long detention can lawfully continue, whether before or after an arrest has occurred. This chapter addresses two particular aspects of that issue. First, for what period can detention continue without the detainee having to appear before a judge? Second, for what period can detention continue after the person has appeared before a judge? This second question can be further subdivided, focusing initially on the maximum period that can be permitted to elapse before the detainee has to be charged with an offence or released, and then on the period that can be permitted to elapse after the detainee has been charged but before his or her substantive trial begins.

This chapter looks to the law of international human rights, which provides further rules regarding the treatment of persons deprived of their liberty in relation to a non-international armed conflict. The protections of international human rights law act to supplement the IHL rules, so that it is possible to speak of a substantial body of rules applicable in non-international armed conflict that effectively duplicate nearly all the protections afforded to combatants and POWs.

This chapter examines what effort was made to identify all important classes of consequences and then to predict and assess them. It begins with the overall government choice and, after that, looks specifically at the decision by the Office of Legal Counsel (OLC). Nowhere in the process leading up to the Bybee memo, nor in the series of discussions after that, does anyone seem to have carefully considered the categories of cost, or the doubts about benefits, associated with the decision the White House seems to have wanted. On October 5, 2005, the Senate voted on John McCain's amendment to a military spending bill, which would prohibit cruel, inhuman, or degrading treatment of detainees in US custody anywhere in the world.

One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. Although not a perfect solution to a complicated problem, the hybrid paradigm proposes an alternative that addresses the dilemma of how to balance legitimate civil and political rights of the individual with the equally legitimate national security rights of the state. Accordingly, the detainee held by the US in Guantanamo Bay and similar facilities will be granted certain constitutional rights, in particular those based on the Fifth, Eighth, and Fourteenth Amendments. The operative words in this chapter are granting certain rights to non-Americans held by the United States outside the United States. Such an analysis facilitates an examination of whether the proposal sufficiently protects the rights of those it presumes are a constitutionally protected class.

This chapter begins with an overview of the entire volume, starting with a report of top United States government lawyers after 9/11 developing legal arguments to justify torture and coercion of detainees during interrogation. These lawyers could draw on an anti-international law tradition that denigrates international law for its lack of enforcement means. In fact international law has means of enforcement, but, more importantly, it is accepted by the international community as law. Acceptance and enforcement together support the claim that international law is law. With this acceptance, international law has the capacity to support the common aspirations of all humanity.

In its depictions of Guantánamo Bay detainees, the state’s agenda is obvious. But the state is not the only entity that mediates detainees’ voices: so, too, do the individuals and organizations that work on their behalf. Reading the history of anti-Guantánamo activism, the chapter demonstrates that it often relies on an erasure of detainee political subjectivity and a refusal of the possibility of detainee anger. Three case studies bear this out. First, a set of city-council resolutions from Massachusetts and California that extended hypothetical welcomes to select detainees on their hypothetical release; the chapter queries the politics of this deeply conditional hospitality and the presumptions of American exceptionalism underpinning it. American exceptionalism is central to the analysis of the next object, the Witness to Guantánamo documentary project, which collects testimonies from former detainees. W2G does crucial documentary work, but its structure also compels the detainees to offer forgiveness and recuperative visions of American goodness. Next, the chapter explores the politics of detainee creative production, with a particular attention to practices of circulation and consumption, and the fictive experiences of intimacy that they promise their audiences. The chapter ends with a critique of a fanciful renarration of Guantánamo’s past and future.

This chapter takes a look at the atrocities committed during protective custody. In this case, the perpetrators were oblivious of the deed and its consequences and had a knack for making both sound all too human, which should surely gain people's sympathy. After all, everything was done in good faith, and the world should respond accordingly when it learned what actually happened, as in the case of Dr. Ernst Eckstein. This case was depicted abroad as one of the most gruesome of bloody deeds, after the spirit of the despairing victim was broken: Dr. Ernst Eckstein, one of the first political functionaries to be taken into protective custody. But most die a natural death. The diagnosis was often exhaustion; from time to time someone was overcome with faintness and plunges from the third floor into the courtyard of a police station, prompting his guard to deplore the man's carelessness in standing too close to an open window. Nor as a nervous breakdown uncommon, especially in travellers, in whose case suicide was then committed.

This chapter reveals a venomous witch's brew of sexual hatred and extorted confessions. Such things were spewed out between Nuremberg, Ingolstadt, Mannheim, Worms, and Cassel, and out of this journalistic filth a pillory has been erected day by day “to rehabilitate the race and cleanse nature of its pollution.” Everywhere one could read, with names and addresses supplied, were announcements which denigrated Germans for having relations with Jews. The chapter also returns to the plight of the detainees under protective custody from the previous chapter. Kraus had heard “unforced conversational exchanges with detainees in protective custody,” who personally gave all the information one could ask for—the programme actually bore this title, in itself enough to dispel any suspicion of something done under duress.

This chapter argues that the decision to release most political detainees was the result of a major international campaign undertaken by human rights organizations in the mid-1970s. That campaign succeeded in large part because it coincided with significant changes in global norms and attitudes pertaining to human rights as well as the position of the U.S. government, and came at a time when Indonesia was vulnerable to outside economic pressures. The chapter makes clear, however, that there was powerful resistance to the idea of releasing these prisoners—and an insistence on the continued need to protect the body politic from the “latent danger of Communism”—particularly on the part of the army leadership. As a consequence, even after prisoners were released, they and their families continued to suffer egregious restrictions, formal and informal, on every aspect of their lives. The formal restrictions continued until the end of the New Order in 1998, but the deep social and psychological legacies have lasted much longer. Finally, the chapter makes the case that the onerous restrictions on released prisoners were part of a more general obsession on the part of the New Order regime with creating and maintaining order, discipline, and stability.

The Bush Administration, within days of 9/11, began developing what came to be known as “the New Paradigm” for the “war on terror,” under which the president authorized “a new, ad hoc system of detention and interrogation that operated outside any previously known coherent body of law.” This book presents interviews with 62 former detainees held in U.S. custody in Afghanistan and Guantánamo Bay, Cuba, as well as 50 U.S. government officials, representatives of nongovernmental organizations, attorneys representing detainees, and former U.S. military and civilian personnel who had been stationed in Guantánamo or Afghanistan in order to answer questions regarding the detention and interrogation. A high degree of consistency is found when comparing the patterns and trends in the interview data with data on detention and interrogation procedures in documents released by the Department of Defense and reports published by the U.S. government, independent organizations, and the media.

The U.S. detention facility at Guantánamo Bay is an institution of total confinement, designed largely to serve the needs of interrogators and their superiors. Most former detainees interviewed for this study experienced their detention in Guantánamo as arbitrary and humiliating, punctuated at times by excruciating mental or physical pain. Nineteen of the 62 detainees interviewed stated they had been punished for various infractions at Guantánamo. Half of the respondents who participated in the Guantánamo study undertook hunger strikes due to the desecration of the Quran or interference with detainees' religious practice. Suicide attempts at the camp are high stakes for both detainees and guards. The health status of detainees, and their struggle for release, are explored. Over 65 percent have been released from Guantánamo. Most respondents said they left Guantánamo the same way they had arrived—on U.S. military transport planes.

Many respondents said they were elated when they learned about their impending departure from Guantánamo. In the weeks and months ahead, many former detainees had simply moved into a “post-Guantánamo phase” in a different land. Detainees are not aware of their fate as they leave Guantánamo. The U.S. government has repeatedly stated that its decision to release detainees is not an admission that they are cleared of wrongdoing, or that U.S. forces committed an error in capturing them or later detaining them in Guantánamo. Virtually all of the released Afghan detainees reported that their family's wealth had been substantially diminished by their incarceration. Many Afghan former detainees stressed they wanted the authorities to find and punish the individuals in Afghanistan who had reported them, and also wanted compensation sufficient to resume a “normal life.” For many, the “stigma of Guantánamo” hindered their ability to find meaningful employment.

This chapter compares the response of Congress to the abuse of the “September 11 detainees” at the Metropolitan Detention Facility (MDC) in Brooklyn, N.Y., with its response to the release of photographs taken at Abu Ghraib prison in Iraq. Given the available evidence and the political context of the time, Congress chose to frame the abuses at Abu Ghraib within the context of the Iraq War, the improvement of human rights in Iraq, and the precarious political relationships required to win the war. Within this framework, the U.S. abuse of detainees at Abu Ghraib appeared to be a disruptive force, a threat to the war's legitimacy and to the bonds that tethered U.S. public support and Iraqi “hearts and minds” to the war.

In 1943, with finance from the Duke of Bedford, G. A. Aldred, a Glasgow anarchist, published a pamphlet attacking Regulation 18B; it records the experience of detainees, and was mainly compiled by John Wynn, himself detained under 18B (1A) from June 1940 to January 1943. One documentable case illustrates both the fear caused by the initial detentions and the witch-hunting atmosphere of the times. John Ellis was a considerable businessman in Leeds. He had joined the British Union (BU) as a non-active member in 1935 or 1936, and had entertained Sir Oswald Mosley during a speaking tour. Another documentable case involved a medical student, Henry A. Steidelman, detained in late July not so much as a BU supporter but as a pro-Nazi and potential spy. As well as mistakes, some revealed in litigation, there were some quite absurd arrests. Winston Churchill took a lively interest in the great incarceration and received weekly lists of ‘Prominent Persons’ detained until September 14, 1940.

Executive detention in Britain normally began with arrest without warning. There were ugly incidents. R. R. Reynolds of Tottenham was slapped. Some resisted arrest. Amongst the Anglo-Italian communities, the 600 Regulation 18B detentions coincided with 4,000 or so arrests under the prerogative, and produced terror. Arrests separating parents, particularly mothers, from young children, seem peculiarly harsh. No special arrangements were made for the care of families and dependants; they could apply like anyone else to the Local Assistance Board. The techniques adopted at Latchmere House are clinically described by Hinsley and Simkins in an appendix, so drafted as to impose responsibility on the Home Office for what went on. There was fear in Military Intelligence Section 5 that information about Latchmere House, and the double agents, might leak. As early as June 11, it had been suggested that detainees should be held in camps. Winston Churchill had long been a romanticiser over habeas corpus, and although initially a strong advocate for detention he soon began to have doubts.

The threat to the integrity of Norman Birkett's committee stemmed from the War Cabinet decision of May 22. Until then the committee evaluated the threat to security posed by individuals; there had to be a case against each person, and each recommendation was independent of what was recommended for other detainees. After May 22 all this changed; the War Cabinet had decided that the fascists were potentially dangerous, and the British Union (BU) was to be crippled. There could be no question of the advisory committee going against this and recommending the release of Sir Oswald Mosley and his principal followers, quite irrespective of what emerged in hearings. Nor was the release of Capt. Maule Ramsay conceivable. The executive detention of the lesser BU activists also implemented a general policy decision, as did the arrest of the Anglo-Italian members of the Fascio. Where, after May, individuals were detained simply on the basis of their own actions or sympathies, the committee could proceed much as before; such cases, however, now formed a minority.