Civil Liberties and Constitutional Rights

By David Swanson

Remarks made on May 24, 2008, in Radford, Va., at the Building a New World Conference:

Our First Amendment has been locked up in a chain-link Free Speech Zone.

The Fourth Amendment is under warrantless surveillance and scared for its life.

The Fifth, Sixth, and Seventh Amendments have been detained without charge.

And the Eighth Amendment is presently undergoing waterboarding.

We are losing our original Bill of Rights as well as basic rights that underpin it, including the right of habeas corpus (that is the right not to be simply kidnapped and imprisoned or disappeared without a fair trial), the right to vote and have our votes credibly counted, the right to live in a nation of laws where the laws are publicly known and everyone is required to obey the same laws, the right to live free of military occupation – which is the spirit of the Third Amendment and of the Declaration of Independence, the right to have our views represented in the House of Representatives, and the all-important democracy maintaining tyranny preventing right of impeachment.

Of Franklin Roosevelt’s four freedoms we are making progress in exactly zero of four. The first two freedoms, of speech and religion are found in our First Amendment, which is locked up in a free speech zone waiting for the war on christmas to be over. The third freedom, the freedom from want, is slipping from the grasp or even the vision of billions of people. Roosevelt meant for everyone, not just Americans, to have this freedom. Even many Americans do not have it. If they had it, they would be better participants in our civic life and would help to win and protect many other freedoms.

The current U.S. government has made the obliteration of the fourth freedom its primary mission for a similar reason. If we had the fourth freedom we would be much better prepared to safeguard the others. The fourth freedom is the freedom from fear. Roosevelt proposed winning this freedom not just by establishing the other freedoms around the globe, but by reducing armaments around the globe. Today, we carry the dual obligation to increase armaments in our militarized attempt to combat fear AND to nonetheless remain constantly afraid. As well we should, because the increased armaments are giving us reason to.

It is safe to say that if the evil doers hated us for our freedoms, they’d be well on the way to loving us by now.

If we were to find a way of restoring our rights and liberties and developing new ones, that would be a positive and constructive step, even if the method of restoration included holding accountable the people who have been stripping our rights away. Such a restoration would have as its main purpose something much larger than personal revenge or punishment. It would be a forward-looking, not a backward-looking endeavor.

When Senator Chris Dodd proposed to filibuster any bill granting telecom corporations immunity for crimes that violated the Fourth Amendment, he made himself something of a founding father of this nation. This is a nation that has to be founded again and again and again, as it has been for 230 years. We’ve just slipped up the past several years and stopped founding it. Of course, in the end Senator Reid used the Fourth Amendment as toilet paper, but the House found some spine and chose not to completely flush it down the drain just yet.

With various degrees of complicity from Congress, from potential whistleblowers who have kept silent, from corporations, from the corporate media, from other nations, from astroturf pseudo-activist groups, and from the rest of us who have simply not done enough to put a stop to it, here are a few things the Cheney-Bush regime has done to our rights and liberties:

They have illegally detained indefinitely and without charge US citizens and foreign captives. On Feb. 7, 2002, Bush signed an order announcing that in the US fight against Al Qaeda, “none of the provisions of Geneva apply.” He was already transporting captives from the war in Afghanistan, both alleged Al Qaeda members and alleged fighters in the army of the Taliban government, to US-run prisons in Afghanistan and to Guantanamo. He had already begun the rounding up of Muslim non-citizens in the United States, and the detention of terrorism suspects found in other countries.

Many of these detainees have been beaten and tortured, as documented in photographs, witness testimony, documents exposed in law suits, and a Justice Department Inspector General report.

Detainees have been ghosted. That is to say that the Cheney-Bush administration has refused to provide the identities of detainees or the locations of detention centers, and has refused to allow the Red Cross to visit them.

US citizens have been held in military brigs in solitary confinement for as long as three years.

Bush has declared people “enemy combatants” subject to the death penalty without the right to counsel or fair trial. The Military Commissions act purports to legalize such power.

The Cheney-Bush gang has secretly authorized and encouraged the use of torture, and Bush has recently confessed to approving of meetings at which Cheney and others approved of particular torture sessions. Nancy Pelosi and others in Congress were briefed on waterboarding and other torture techniques in 2002, and kept quiet. The one congress woman who formally but secretly objected was denied the chairmanship of a committee on which she was the ranking member by Pelosi.

Torture has been routinely used at Guantanamo, Abu Ghraib Prison in Iraq, air bases in Afghanistan, and secret sites, as well as in nations to which the United States has renditioned prisoners to be tortured. It has included water-boarding, beatings, faked executions, confinement in extreme cold or extreme heat, prolonged enforcement of painful stress positions, sleep deprivation, sexual humiliation, the defiling of religious articles, suspension from the ceiling by wrists, electric shock, and slicing of genitals with knives. It has involved everything up to and including murder.

The guards at Guantanamo are terrified. Even a man with no legs (amputated after being intentionally exposed to extreme cold by American guards in Afghanistan) is treated as a horrifying threat:

Here’s a quote. “The bandages wrapped around Abdul’s stumps were never changed. When he took them off himself, they were full of blood and pus. He showed the bandage to the guards and pointed to his open wounds. The guards ignored him. Later I saw how he tried to wash the bandages in his bucket of drinking water. But he could hardly move his hands, so he wasn’t able to. And even if he had, where would he have hung them up to dry? He wasn’t allowed to touch the fence. He wrapped his stumps back up in the dirty bandages.

“When the guards came to take him to be interrogated, they ordered him to sit with his back to the door and put his hands on his head. When they opened the door, they stormed in as they did with every other prisoner. They hit him on the back and pushed him to the ground. Then they handcuffed and bound him so he could no longer move. Abdul howled in pain.” End quote.

A man with no legs? No, a terrorist with no legs, a mythical evildoing creature with no legs. Hatred? Yes. Bigotry? Yes. But driven by fear instilled through training in the U.S. military, fear of monsters with superhuman powers, fear strong enough to make a team of armored storm troopers fear a legless man in a cage.

The passage I quoted is from “Five Years of My Life: An Innocent Man in Guantanamo,” by Murat Kurnaz, and reading his account might begin to make the reader, too, view the caged prisoners as less than human, were it not for the skillful way in which Kurnaz intersperses descriptions of his pre-Guantanamo life in Germany.

Kurnaz made the mistake of traveling from Germany to Pakistan shortly after September 11, 2001. He has never been to Afghanistan, except in the custody of American guards who took him there from Pakistan on the way to Cuba. The Americans never alleged any particular crime, but simply declared him an enemy combatant and took away five years of his life. A U.S. military kangaroo-court commission convicted him on two counts. The first was having once been friends with a man who supposedly committed a suicide bombing long after Kurnaz was in Guantanamo and about which Kurnaz knew nothing. The strangest part about that first count is that the alleged suicide bomber is alive and well back in Germany, has never been involved in anything of the sort, and has not himself been charged with anything. The second count was of having accepted free food from a humanitarian group with which Kurnaz was working in Pakistan. How that act made Kurnaz “the worst of the worst” is not clear. While the United States always knew that they’d paid $3,000 to someone to turn Kurnaz in, in Pakistan, on the basis of no suspicion of anything, the tribunal concluded that he’d been arrested as an al Qaeda fighter in Afghanistan. At least that was the conclusion up until the moment the United States set him free, or the moment three years earlier when the United States decided he was innocent but allowed him to be tortured daily for three more years prior to release.

At Kandahar air base in Afghanistan, Kurnaz was deprived of food and sleep, routinely beaten, electro-shocked through his feet, threatened with drowning and his head held under water, and hung from the ceiling by his wrists until he lost consciousness. Kurnaz was in very good physical shape prior to this ordeal, and survived it. He saw others die from these procedures. Kurnaz did not know at the time that the worst still lay ahead for him on a Caribbean island, and he had no idea where he was being taken when they loaded him on the plane for Guantanamo:

“They chained us together and herded us onto a plane. We were bound so tightly we couldn’t move a millimeter. Again, I thought they were taking us to an American military base in Turkey. What else was I supposed to think?

“Sleep would have been the only consolation in such a situation. But the soldiers kept hitting us to keep us awake. I thought about the American movies I had seen in Bremen. Action flicks and war movies. I used to admire the Americans. Now I was getting to know their true nature.

“I say that without anger. It’s simply the truth, as I saw and experienced it. I don’t want to insult anyone, and I’m not talking about all Americans. But the ones I encountered are terrified of pain. They’re afraid of every little scratch, bacteria, and illness. They’re like little girls, I’d say. If you examine Americans closely, you realize this – no matter how big or powerful they are. But in movies, they’re always the heroes.”

Brought to the New World in a transport reminiscent of slave ships, Kurnaz was placed in a small metal cage (six by seven feet) exposed to the sun, rain, spiders, snakes, and soldiers, on a lawless military base in Cuba. And he was better off than most of those around him.

“I know of a prisoner,” he wrote, “who complained of a toothache. He was brought to a dentist, who pulled out his healthy teeth as well as the rotten one. I knew a man from Morocco who used to be a ship captain. He couldn’t move one of his little fingers because of frostbite. The rest of his fingers were all right. They told him they would amputate the little finger. They brought him to the doctor, and when he came back he had no fingers left. They had amputated everything but his thumbs.”

Even in Cuba, one of the torture techniques employed is subjection to extreme cold inside a chilled metal box. Kurnaz provides us an inside account of these experiences, and of the day-to-day life of solitary confinement, beatings, interrogations, and denial of adequate nutrition. Kurnaz was once kept awake for three weeks. He was given extensive stays in solitary. He was subjected to extremes of cold and heat. He was denied oxygen almost to the point of suffocation.

When guards trampled a Koran, the prisoners began a hunger strike and discovered that the General in charge did not want them to die. They discovered that they had some power, and they got organized. In the end, Kurnaz and others were force-fed, and the commander of Guantanamo was replaced with another (General Geoffrey Miller) who seemed not to care at all who lived or died. Prisoners once mixed feces and water and threw it on Miller’s face, and from that point on called him “Mr. Toilet.”

In this environment, Kurnaz found humanity among the prisoners, who shared the little food they were given and cared for each other. And in very rare instances he found humanity in a couple of guards who spoke of their disagreement with what they were engaged in. One can only hope that every man and woman who has served as a guard at Guantanamo reads Kurnaz’s book and adds their voice to the growing chorus speaking truth to unspeakable power.

In Guantanamo, prisoners are sometimes told they are being released, given clothes, placed on airplanes, and then thrown back in their cages. So, Kurnaz was inclined to be skeptical when told of his impending release:

“I was brought to an interrogation room and chained to the floor. But no one came to ask me any questions. Hours later, two soldiers appeared and placed a telephone on the table.

“‘You’ll be getting a call,’ they told me.

“That made me curious. I didn’t know who the caller would be. An interrogator? My lawyer? Maybe the judge?

“More hours passed. What was going on here? Suddenly the phone rang, but no one came to help me.

“I couldn’t pick up the receiver with my hands and feet shackled, but the telephone kept ringing. I threw myself to the floor and tried to drag the table toward me with my feet. Kicking one of the table legs, I managed to dislodge the receiver and knock it down to the floor. I squirmed to get my head as close as possible to the handset. I could just hear a voice on the other end of the line.

“‘Hello? Hello?’


“It’s me, Baher. You’re going to be released!’

“‘I know. How are you doing?’

“‘Murat, are you listening? You’re going to be released.’

“‘I know,’ I said. ‘They’re playing a nasty trick on you. How is your daughter doing?’

Yet he was released. And yet we do not all know his name. For five year our tax dollars paid guards to ask him his name and other basic questions endlessly, between beatings. And yet we do not all know his story or feel the shame of it.

All across the United States of America there are university departments that claim to teach philosophy and others that claim to teach politics, and yet there are not a million students and professors in Washington, D.C., every day demanding impeachment. How can this be? Can a German victim of our apathy shake us out of our Good-Germanism?

On Tuesday of this week, according to a newspaper report from AFP,

“A handful of US lawmakers gave only half an ear to the testimony … of a former detainee at Guantanamo Bay, Cuba who spent nearly five years in prison before being released without charge. Murat Kurnaz….

“The House of Representatives Committee on Foreign Affairs invited Kurnaz to testify via video conference as part of a hearing on Guantanamo detainees who are being considered for release but cannot find a host country to take them. Taking into account the difference in time between the United States and Europe, it was already late in Germany by the time committee speaker Democrat Bill Delahunt gave Kurnaz an opportunity to speak. Kurnaz, his hair trimmed short and dressed in a black suit, gripped his notes and began to speak, but a technical difficulty prevented the audio from reaching Washington. Some reporters and members of the public gave up waiting, but after around a half hour Kurnaz was able to be heard — and he recounted some of the horrific details of his travail.

“‘I did nothing wrong and I was treated like a monster,’ he said, describing acts of torture such as being suspended by his wrists for hours on end, receiving electrical shocks and enduring simulated drowning.

“I know others have died from this kind of treatment,” he said.

“I suffered from sleep deprivation, solitary confinement, religious and sexual humiliations. I was beaten multiple times,” he said.

“There was no law in Guantanamo.”

” … Facing the screen, the majority of seats for committee members sat empty. Barely half a dozen lawmakers came to listen to the former detainee, and most were unable to remember his name, with one even calling him ‘Mr. Karzai.’

“The first to speak after Kurnaz was finished was ranking member on the committee, Republican Congressman Dana Rohrabacher, who expressed doubts about the testimony and recalled that the United States was ‘at war’ and needed to protect itself even at the price of making some errors.” End quote.

Senator John McCain himself claims to be a victim of torture. Of course he was finally released from prison in Vietnam following negotiations, something he now denounces as appeasement. And torture, which he once denounced as both evil and useless, he now celebrates. In fact, McCain led a successful if stupid effort to pointlessly recriminalize torture, and Bush signed the bill into law but added a signing statement written by Cheney’s lawyer announcing that he would still torture if he wanted to. McCain’s response was the same as it would have been had his head been underwater.

Impeachment hearings for Dick Cheney on this topic would destroy any pretense that McCain can legitimately be elected president. If McCain will flip his position on torture, how could there be anything on which he wouldn’t sell out? But the Democrats won’t do it, perhaps because of the complicity of their own leaders.

Senator Barack Obama says he’s opposed to impeachment because he is unaware of any crimes having been committed and he believes impeachment should be reserved for “exceptional circumstances.”

Bush and Cheney authorized torture and admit having done so, and the president holds responsibility as the chief executive, in any case, for failing to halt torture either when he became aware of it or when the rest of us did.

The only defense put up by the White House is the word game of labeling certain torture techniques as something other than torture. One of the many reasons that this is absurd is that these thugs have made use of just about every torture technique ever developed. They can’t ALL not really be torture. In addition, the Third Geneva Convention, which is the law of this land under Article VI of the US Constitution, doesn’t say it’s OK to torture if you don’t use the worst techniques. It says

“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

This is of course why the Cheney Bushevicks call prisoners of war “enemy combatants,” a category of person that does not exist in any system of law.

Torture is prohibited by the Eighth Amendment to the US Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Rather than holding anyone responsible for torture, the House of Representatives last week proposed to re-criminalize it yet again.

The fact is that torture cannot be criminalized because it is, under international law, along with things like genocide something that no nation can ever legalize. The President of the National Lawyers Guild Marjorie Cohn recently testified on this to the House Judiciary Committee, and her organization has proposed that Congress create a special independent prosecutor to prosecute the lawyers who have worked with Bush and Cheney to make torture a tool of the United States.

I’ve gotten carried away with one topic and focused on torture. Some of our missing civil liberties could be restored through the repeal of legislation like the PATRIOT Act, the Military Commissions Act, etc., but some of these laws were put in place to legalize unconstitutional activities only after those activities were exposed to the public. Meanwhile those who committed these crimes for years, who spied on us without warrants, detained without charges, tortured, murdered, deprived us of transparent elections, and so forth, have paid no penalty. So, what is to discourage administrations in the near or distant future from engaging in the same types of abuse?

I can’t imagine what could do it better than impeachment and prosecution. Impeachments have been done in 1 day. We have 8 months. We don’t need to touch anything Congress has been complicit in to make our point. They got Al Capone on tax fraud. They can get Dick Cheney on refusing a subpoena. But get him they must, or the work of Virginians like George Mason and James Madison and the struggles of nameless Americans over two and a half centuries will not just be consigned to history. They will be erased from human memory which will not permit that history to be written.

Your congress member is home for the next week and should not have a minute of peace until we have justice.

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