President Barack H. Obama
The White House
1600 Pennsylvania Ave., NW
Washington, DC 20500
Hope — Václav Havel once wrote — is not the same as joy that things are going well, or willingness to invest in enterprises that are obviously headed for early success, but, rather, an ability to work for something because it is good, not just because it stands a chance to succeed. Havel, who, of course, knows a thing or two about change from the bottom up, seems to say of the nature of hope that it is something that exists within a person, regardless of what goes on in the world and even, sometimes, altogether in opposition to real conditions. I will return to the idea of hope below, but for now let’s leave Havel’s formulation to float around in the background while I discuss more solid stuff.
The success of your election campaign was, for me and for many others, and for many reasons, a relief and a riposte against the dark, fumbling, illegitimate years of Bush and Cheney. Presidential signing statements defying the rule of law; indefinite detention without charge; false claims of WMD; false claims of al Qaeda/Iraqi collaboration; lawless private armies; warrantless wire-taps; annulment of habeas corpus; water-boarding; Guantanamo; Abu Ghraib; New Orleans; police-state crackdowns during the 2008 RNC convention…the list of disasters goes on. Professional, credentialed journalists with access to information well beyond my own meager resources have done much to cover, and uncover, the intricate workings of all these debacles, revealing the cynical, polarized, politicized brand of so-called justice to which Americans and its perceived enemies have been subjected for nearly a decade. I will not repeat what has already been analyzed, exhaustively; but it is important that we not forget how quickly things can get out of hand, how an unencumbered executive branch forgets that there are limits to its power.
Which leads me to you, and how quickly you seem to have forgotten yourself. To my mind, one of the most important planks of your campaign platform was a promise to resuscitate and enforce transparency at the highest levels of government. It was this promise, perhaps above all, which revealed the progressive nature of your intellectual differences with the previous administration, and which heralded a restoration of executive accountability. After your election and inauguration, in a memorandum addressed to the heads of executive departments and agencies, you alluded to the relationship between governmental transparency and successful, participatory democracy:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
This is in line with the expectations you helped to raise over nearly two years of leading the primetime fight against the roll-back of human and civil rights.
So it came as a terrible surprise to me, when, not long after your announcement that you would close the Guantanamo Bay detention center, I read of a move by your Department of Justice to block a judge’s ruling that certain prisoners at the Bagram Air Base in Afghanistan may be entitled to the right to challenge their detentions. Bagram exists in “a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty,” according to the DOJ’s filing. Boumediene v. Bush, the case in which the US Supreme Court ruled in favor of the rights of detainees at Guantanamo to challenge their detentions, is narrowly defined and has nothing to do with any prisoner outside one particular US prison on Cuban soil. However, the US Supreme Court had previously ruled, in Hamdan v. Rumsfeld, that those same detainees do have recourse to the rights afforded to enemy combatants by the Third Geneva Convention, which includes basic judicial rights (habeas corpus being primary among them). Furthermore, in striking portions of Article 7 of the Military Commissions Act of 2006, the court decided it does have jurisdiction to review habeas petitions “filed by or on behalf of an alien determined by the United States to have been properly detained as an enemy combatant.” This does not guarantee release or even a trial, but it does satisfy the most basic principles of democratic justice (barring rebellion or invasion, per the Suspension Clause): the right to face one’s accusers; to know the charges levied by them; and to gain access to legal counsel.
The problem, though, the grey area so expertly and deviously exploited by your predecessor in the Oval Office, is that many of the prisoners held at Guantanamo and Bagram, and elsewhere I’m sure, have been deemed “unlawful” enemy combatants. This category of captive does not, to my knowledge, exist in any of the international statutes or treaties of war to which all signatories, the US included, are bindingly held. A partial summary of the Third Geneva Convention, as posted to a site managed by the International Committee of the Red Cross, reads:
Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.
To quote directly from the Third Geneva Convention, Article 2:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.
The document goes on, in Article 4.3, to define the term “prisoners of war,” which includes:
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
It is through a single word — the seemingly benign adjective, “regular” — that the Bush administration seems to have endeavored to wriggle out of its obligation to the rights of its captives. Then-White House Counsel Alberto Gonzales suggested, in a January 25, 2002 memorandum to then-President George W. Bush, that the nature of the Taliban forces in Afghanistan, that of a non-state military entity “not recognized by the international community,” pre-empted the Geneva guidelines for treatment of POWs in any ensuing military confrontation with that entity or any similar to it.
This, along with a series of memoranda originating in the DOJ’s Office of Legal Counsel, the Department of Defense, and the Oval Office itself, and promulgated in the first months of 2002, created a framework in which U.S. military and governmental forces might “justifiably” deny POWs their basic rights. The argument behind these memos — to wit, that military prisoners unattached to a recognized state-entity, so-called “unlawful” enemy combatants, exist outside the parameters of international laws governing war — is facile at best and conniving at worst. Later that same year, in direct contravention of universally accepted and applicable laws, William J. Haynes II, then-General Counsel of the DOD, wrote in a memorandum to the American Society of International Law and the Council on Foreign Relations:
“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants…Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.
I think, by now, you must know what I intend by this letter. I intend to call you to account for applying the same ill-conceived logic, the same extra-legal gymnastics, that you so harshly condemned, and which I still do, with the backing of international law, basic democratic principles, and fundamental human decency. I call on you to decry the crimes that have already been perpetrated, and to pursue the participants to said crimes, as your presidential oath to uphold the law demands you must. It cannot be for the good to hide our trespasses from ourselves or from the world. It cannot be a just action to secretly or openly promote the very misdeeds you publicly abhor. It cannot be anything but the defeat of democracy to claim a victory propped up by war crimes and human rights abuses.
Getting back to Havel, and his conception of hope:
Either we have hope in us or we don’t; I don’t think you can explain it as a mere derivative of something here, of some movement, or of some favorable signs in the world.
You said, during the long campaign and again in your inaugural address, that the choice between security and the ideals of democratic government was a false choice. I agree, and applaud you for saying so. Even if domestic spying and torture and indefinite imprisonment and deferral or disavowal of basic human rights might maintain our security — and there is no proof any of it does — it is anathema to the fundamental tenets of free democratic society that any of these tactics be put to use in its promotion or defense. To leave even the slightest hint of a possibility that you, on my behalf, and on behalf of your family and mine, and on behalf of every American who never asked you to do so, will break your promise for the expediencies of political face-saving — and after such a long, pitched battle to get to where you are — is utterly deflating.
I cannot hold you accountable, Mr. President, if I lose my sense of hope; I have it or I do not. But for breaking your promises I do hold you accountable. It is not too late to renew your own hope, a hope you so earnestly professed, for a new kind of government. It is not too late to follow through on the promises you have made. I still believe we can change this world; do you believe the fight is yet done?
With hope and sincerity,
Jacob Aaron Bennett