Our Nation Unhinged provides a compelling account of the human costs of the erosion of civil rights in the post-9/11 US. The rule of law became a negotiable commodity leading to the institutionalisation of injustice and, as Peter Jan Honigsberg shows, quite unnecessary human suffering. Compared with previous instances of American judicial repression - the 1919 Palmer Raids, the internment of Japanese-American citizens during the Second World War - the post-9/11 attacks on civil rights do not stand out as a unique response to a national emergency. What does stand out is the unprincipled manipulation of legal norms and the powerful sense of bad faith with which the Bush Administration attempted to provide a legitimate facade for its policy of pre-emptive detention of both US and foreign nationals.
The most important driver of officialdom's bad faith was the motive of evading existing forms of accountability through the fabrication of new quasi-legal concepts and categories. The term "enemy combatant" is a paradigmatic example of a quasi-legal category invented for such a purpose. Until its invention, it had no meaning in international law. The Geneva Convention recognises lawful combatants, who are entitled to prisoner of war (PoW) status, and unlawful combatants, who are not. Unlawful combatants, such as spies, do not enjoy the legal rights afforded by PoW status but nevertheless benefit from some protection under international conventions and are expected to be treated humanely. With sleight of hand the Bush Administration redefined unlawful combatants as enemy combatants to describe the prisoners it held at Guantanamo Bay.
There were two important motives for this rebranding exercise. The first was the objective of getting around the Geneva Convention and thus being able to treat detainees outside the framework of international law. The second was the concern of government officials to avoid responsibility for acts that might open them to prosecution for war crimes and illegal activities in the future. Honigsberg notes that "officials figured that if there was no law to protect detainees, mistreating them would not be a violation of the law".
The Bush Administration made up the law as it went along to ensure that it could not be prosecuted for "unlawful practices". To this end, it asked the Department of Justice to identify legal interrogation techniques that would license the harsh treatment of detainees. The so-called torture memorandums written by the lawyers working for the department met that aim by defining torture so narrowly that only when it was pursued for its own sake was it deemed torture.
It is paradoxical that a Government that took such a cavalier attitude towards due process and the rule of law nevertheless took the law very, very seriously. This ambiguous orientation towards the law did not prevent the Government from trampling on civil liberties. But it did encourage the Bush Administration to confine many of its most morally questionable activities to jurisdictions that lay outside the US. It selected Guantanamo Naval Base as the site for holding foreign captives for the very simple reason that the prisoners "would not have the constitutional right to the habeas corpus petitions" in American federal courts. The expansion of the practice of extraordinary rendition, which allowed US authorities to arrest, detain and transport suspects to interrogation sites in different parts of the world, was also fuelled by the desire to evade the norms of due process operating within the jurisdiction of US courts.
Honigsberg's book is not simply a story about the abuse of power and its consequences for thousands of detainees. It also offers important insights into the workings of the official mind of the US Administration. One of the questions that the author comes back to time and again is why they did it when there was no need for such extraordinary repressive measures to pursue the so-called War on Terror. "It did not have to be this way," he writes, and adds that "we could have applied the rule of law to the people we have held since 9/11 and still protected ourselves and our nation from terrorists". He adds that the "horrors of Guantanamo" could have been avoided and "still kept the detainees incarcerated if we had adhered to the rule of law". Indeed, some of the detainees held as enemy combatants could have been prosecuted in American criminal courts. So why did they do it?
It appears that the Bush Administration was reluctant to pursue its prosecutions through open legal channels because it felt both insecure and exposed. There is considerable evidence that it had little idea of what it was up against and adopted desperate measures to gain information about its opponents. Back in 2005, Admiral Bobby R. Inman, former deputy director of the CIA, described 9/11 not only as an "intelligence failure" but "one grounded in a failure of imagination", a situation where "you don't know what you are looking for; you don't know where to look".
The Bush Administration certainly had no idea where to look. Nor did it have much of an idea about the people it had captured. For a start very few of the prisoners held in Guantanamo were captured by US forces. Almost 90 per cent of the detainees were captured in Pakistan or by the Northern Alliance in Afghanistan. Many of these prisoners were arbitrarily seized by mercenaries and sold for the rewards offered by the US. One US officer involved in the processing of prosecution proceedings in Guantanamo reported that "in many cases, we had simply gotten the slowest guys on the battlefield". Very few serious players were caught in the fishing raids and whatever its objectives, the Bush Administration's illiberal detention and interrogation policies yielded very meagre results.
What is most disturbing about this violation of the rule of law is that it was perpetrated by people who on some level knew that what they were doing was wrong and that their actions violated the fundamental legal principles of their society. They clearly mistrusted their own public and opted for secret and quasi-legal measures. Although often caricatured as hard-line ideological neoconservatives, most of the leading officials were driven by a sense of unease and insecurity about the very meaning of the conflict rather than by adherence to a doctrine. Indeed, the attempt to construct an infrastructure for gaining uninhibited access to prisoners can be seen as part of an attempt to find an explanation of the threat it confronted and put a face on the enemy. What's truly terrifying about this episode is how officialdom's banal search for meaning mutated into a pointless crusade against an enemy that could not be named. Yet this futile exercise succeeded in exposing the frailty of the rule of law.
In the end, officials acting in bad faith could not promote their cause with conviction. Guantanamo Bay turned into a public relations disaster for Bush and, as a result, significant sections of public opinion have become sensitive to the threat posed by attempts to undermine due process and liberty. Unfortunately, once civil liberties are lost, it is difficult to regain them. Honigsberg's story reminds us that our most precious rights are only as strong as the public that is prepared to defend them.
Peter Jan Honigsberg is a professor of law at the University of San Francisco School of Law. The day after the attacks of September 11, 2001, he spoke to his dean and offered to teach a class on the legal issues that would arise from this event. He began the class in 2002 and has taught it every year since.
He is now preparing his project "Witness to Guantanamo". He hopes to document the abuses by recording interviews with former detainees around the world.
Honigsberg studied law in New York and spent his vacations in the South working in the civil rights movement, mostly in Bogalusa, Louisiana, with Deacons for Defense and Justice, the first modern-day black organisation to respond with force against the Ku Klux Klan.
In his free time these days, Honigsberg writes children's stories, three of which have been published.
Our Nation Unhinged: The Human Consequences of The War on Terror
By Peter Jan Honigsberg
University of California Press 334pp, £16.95
Published 8 May 2009