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Redefining American Patriotism

Last week, four men suspected of terrorist activities against the United States were released from the Camp Delta prison on the U.S. military base in Guantanamo Bay, Cuba. According to officials, these suspects were discharged because they were innocent of terrorist activity. They had no connections with Al Qaeda and could provide the Government with no information on past or future anti-American operatives.

In a way, the news highlighting the release of these four innocent men inherently distracted us from the substance of their imprisonment. We received news of their release only after the Government’s long, eerie and deliberate silence concerning what exactly these men were released from.
According to the New York Times on October 29, 2002, the four men had been incarcerated for 11 months prior to their release. Of those 11 months, they were interrogated and questioned by officials for only 15 days.

Otherwise, for the duration of almost a year, they remained locked in cells measuring eight feet by six feet – a space just long enough to accommodate a metal cot and just wide enough for a man of average height to spread his arms. These cells received little direct light but at least featured running water, which meant that these men enjoyed the luxury of not excreting into metal buckets, as they were forced to do for the first several months of their detention at Camp Delta’s predecessor.

These men were allowed no exercise. They were allowed no communication with the outside world. Three days before their release, they were finally handed 11 months’ worth of letters from their families in Afghanistan and Pakistan.

More significantly, like the other 608 prisoners at Camp Delta, these four men were deprived legal counsel. Their sentences were not sanctioned by military tribunal, as is common under international law. They were afforded no due process of law as is mandated by the Fifth and Fourteenth Amendments of the United States Constitution.

Rather, they were captured in Afghanistan – either by the military itself, or by roving Afghani bounty hunters that the American Government motivated with cash payments – and transported thousands of miles to a U.S. military base in Cuba, where they were held in isolation for one year with no judicial process.

The Government’s Retort
The Government’s justification for its behavior was one of military exigency. What the Bush administration has yet to explain is how extending basic rights to these prisoners in accordance with constitutional and international law would have impeded the military’s reaction to this perceived exigency. An even more fundamental inquiry is whether, in the long run, the trade-off of individual rights for perceived national security actually enhances or hinders the preservation of American values.

These questions are not new to American history. Ironically, the transport of these enemy combatants to Camp Delta in April fell within days of the 60-year anniversary of a similar emergency procedure: the internment of Japanese residents during World War II. Civilian Exclusion Order No. 27, dated April 30, 1942, mandated the isolation and effective imprisonment of “all persons of Japanese ancestry, both alien and non-alien” in ten camps scattered across the western United States.

Still shaken by the assault on Pearl Harbor six months earlier, President Franklin Roosevelt signed the evacuation order to destabilize a potential basis of enemy military reinforcement should Japan have launched an amphibious invasion of America’s western seaboard. The result was a mass relocation of thousands of U.S. citizens and resident aliens, who remained in camps on U.S. soil for almost three years.

Fred Korematsu was a Japanese-American who had attempted to volunteer for service in the American Navy in June 1941. Imprisoned when he refused to comply with the evacuation order, he challenged the order in court. The Supreme Court of the United States upheld the legitimacy of his internment and in so doing thus legitimized the Government’s imprisonment of thousands of Japanese-Americans. The court grounded its holding in “military necessity.”

Of course, one key difference between Fred Korematsu’s case and the cases of these four innocent Islamic detainees at Guantanamo Bay is that Korematsu v. United States was heard by a court of law. The detainees at Guantanamo Bay, however, were denied access to any judicial tribunal, military or otherwise.

How could this happen again?
Under U.S. law, the executive branch is subject to review by an independent judiciary as part of the American system of checks and balances. This extends to the decisions that the executive branch makes regarding the trade-off between national security and individual rights.

Supreme Court Justice Frank Murphy captured this balance in his dissent to the Korematsu decision in 1944: “In dealing with matters relating to…war, we must accord great respect and consideration to the judgments of the military authorities…. [yet] like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.”

The thrust of Justice Murphy’s criticism is that while the U.S. military must be fully trusted to wage war, its actions cannot escape the later judicial review of the courts, which are mandated to balance the demands of military necessity with the countervailing demands of individual liberties. In one respect, Justice Murphy’s point was moot with regard to Fred Korematsu. However prolonged, Korematsu had his day in court.

The four innocent men just released from Guantanamo Bay, however, never did.

In the Korematsu case, Justice Murphy disagreed with the way in which the court balanced national security and constitutional rights. In the case of the 612 detainees at Guantanamo Bay, there is no opportunity for the courts to disagree, because full discretion has been left in the hands of the executive branch. In the case of the Guantanamo detainees, American courts, which exist to regulate the executive branch, have not been allowed to review the Government’s decisions.

The reason for this imbalance of power is another archaic Supreme Court decision stemming from the Second World War entitled Johnson v. Eisentrager. In the Eisentrager opinion, the Supreme Court essentially held that foreign nationals located outside the sovereign territory of the United States do not enjoy the full panoply of rights guaranteed by the Constitution. Foreign nationals inside America’s sovereign territory must be given certain fundamental rights, such as the basic constitutional right of legal due process.

Yet once such foreigners find themselves outside the technical boundaries of the United States, they enjoy none of the rights or privileges of the American legal system. This rule makes broad sense.

It would hardly be logical for one foreign citizen to sue another in an American court for an infraction of American law that took place in Kabul. American law does not apply in Kabul. The American courts, and the American Government, have no connection to the infraction. The question becomes considerably more blurry, however, in the case of foreigners detained by the American Government on a U.S.-controlled military base, when those foreigners are only outside the sovereign territory of the United States because the United States chose to imprison them there.

Does Guantanamo Bay count?
So should the U.S. military base at Guantanamo Bay, under these conditions, be considered part of the United States? John Ashcroft and the Department of Justice point to the Lease Agreement between the United States and Cuba, signed in 1903, stating that although the United States maintains “full jurisdiction and control” over the Guantanamo base, it falls within the “tec
hnical sovereignty” of Cuba. If an American soldier commits a crime in Guantanamo Bay, because the U.S. enjoys “full jurisdiction and control” over the base, that soldier will be tried by an American court in the Northern District of Virginia. If an innocent Afghani citizen, however, is detained there for one year, without access to legal counsel, without access to a court, and without access to his family – all of which would be guaranteed to him by the Constitution were he technically within the United States – then he, as a foreign national, has no legal recourse.

Suddenly it becomes clear why the Bush administration chose to detain and interrogate these prisoners just outside the reach of America’s sovereign territory. Their actions there are unreviewable. The international community cannot act because the United States maintains full jurisdiction and control over Guantanamo, and so international law can only regulate the treatment of “prisoners of war” (Bush and Ashcroft deliberately labeled these prisoners “enemy combatants”).

The American courts cannot act because the United States does not have technical sovereignty over Guantanamo, so American courts lack jurisdiction (as per Eisentrager) of foreigners detained there. The result is that even if the military chose to systematically murder all of the detainees at Guantanamo Bay, their families would have no legal redress in a U.S. court of law, because foreign nationals on foreign territory do not have access to U.S. courts. In Guantanamo Bay, the executive branch has slipped through a contractual loophole to establish free reign.

Irrational Standards of Law
As was the case with the Supreme Court’s treatment of Fred Korematsu, the Bush administration has chosen to plead military necessity in favor of sacrificing individual rights – rights which the detainees would necessarily enjoy on technical U.S. soil. Yet the silence of the American courts need not mandate a corresponding silence of the populace that they purport to represent. Whereas American courts cannot review such behavior, the American people have chosen not to. The Government’s treatment of these prisoners, and the American populace’s blind acceptance thereof, seem to find their common moral center in a sense of patriotism, reinforcing the notion that the U.S. will be tough on terrorism, and that the victims of September 11th did not die in vain.

It is not hard to see the shortsightedness of this tightly circumscribed definition of American patriotism. The United States has often set the international standard for the Rule of Law, and has historically governed itself in accordance with a handful of simple yet powerful principles that extend to all people in all situations subject to every gradation of presumed innocence.

One of these is the absolute constitutional right to judicial due process. Perhaps Americans presume that the Guantanamo captives are guilty because they find security in the containment of their purported enemies, whether or not the guilt of those enemies has been proven. If this is the case, Americans have traded their long-term security to satisfy their Korematsu sweet tooth for short-term reassurance.

Every compromise of constitutional principles makes those principles more vulnerable to future manipulation. Every violation endured widens the probable tolerance of future infringements. We might even surmise that it was the widespread and apologetic tolerance of the Korematsu decision that precipitated the Bush administration’s suspension of constitutional rights at Guantanamo, and that Guantanamo will in turn facilitate the Government’s next and even more egregious infraction upon constitutional liberties. To use an old analogy, if Korematsu was the butterfly that flapped its wings in China, Guantanamo is the resulting maelstrom over North America. We can only anticipate Guantanamo’s future effects upon the further deterioration of American resistance to the convenient alteration of steadfast constitutional principles.

Ironically, it was Franklin Roosevelt, the same President that signed Exclusion Order No. 27 into law, who instructed our grandparents that there was nothing to fear but fear itself. Perhaps he was too close to the horror of Pearl Harbor to witness the frightening ramifications of his own fear, just as modern Americans are too close to the horror of 9/11 to appreciate the equally dangerous connotations of indefinite military detention without access to judicial review.

How American Patriotism is Earned
In times of fear, Americans must be vigilant not in appeasing their fears, but in resisting the most extreme ramifications of those fears. Patriotism is more than ardently waving the flag – it demands the unilateral protection of the fundamental values that the flag represents. Patriotism is not to be found in imitating our enemies’ autocratic and inhumane tactics. Patriotism cannot consist of treating our enemies as they would treat us.

If the Government continues such treatment, it betrays a foundation of weakness under a fa‡ade of strength – it implies that the attacks of September 11th not only impacted our lives, but our freedoms. The enemy has infiltrated our boundaries to the point of shaking our most fundamental principles. Rather than the cocksure anti-terrorist jargon that the Bush administration transmits as a sign of strength, therefore, the Government would transmit a far deeper sense of confidence and power were it to stand firmly by America’s fundamental principles.

The Government’s true strength here lies in disallowing a perceived enemy to alter our most basic and long-standing values. The most profound demonstration of our true patriotism lies in reaffirming the core principles that made us proud and patriotic to begin with.

November 4, 2002
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