New Hampshire: The Original Guantanamo Bay

BOULDER, Colorado -- The soon-to-be-closed prison camp at Guantanamo Bay was such an anathema to American democracy because it was expressly created to imprison people beyond the reach of American courts; or more specifically, to hold them beyond the reach of the most fundamental right of prisoners, that of habeas corpus. This right has been suspended only a handful of times in American history - Andrew Jackson did it after the capture of New Orleans in 1815, and Abraham Lincoln did it in Washington, DC at the outbreak of the Civil War - and never for the 7+ years that some detainees have been held at Guantanamo. Furthermore, none of these instances are looked upon fondly by history.

The framers of the Constitution had a healthy anxiety about the potential of the new federal government to violate the habeas corpus rights of citizens. Recently I read an article by Eric M. Freedman, "Federal Habeas Corpus in Capital Cases," published in an edited volume, "America's Experiment with Capital Punishment," and I came across this fascinating passage from the Constitutional Convention. A debate was raging about how to deal with habeas corpus rights in the Constitution (this is relevant to the article because even since the Guantanamo debacle, the most common use of petitions for review of habeas corpus come in death penalty cases). Could it be suspended? For how long? And under what circumstances? Luther Martin, a delegate from Maryland, offered this commentary:

And it was urged, that if we gave this power [to suspend habeas corpus] to the general government, it would be an engine of oppression in its hands, since whenever a state should oppose its views, however arbitrary and unconstitutional, and refuse submission to them, the general government would declare it to be an act of rebellion, and suspending the habeas corpus act, may seize upon the persons of those advocates of freedom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure in the remotest part of the union, so that a citizen of Georgia might be bastiled in the furthest part of New-Hampshire - or a citizen of New-Hampshire in the furthest extreme of the south, cut off from their family, their friends, and their every connection.

So, just as our founding fathers feared, we have supplanted New Hampshire with Guantanamo Bay, or with the vast number of other black sites across the world. The Supreme Court has since ruled that the government cannot declare a blanket suspension of habeas corpus for so-called "enemy combatants," whether they be US citizens (Hamdi v. Rumsfeld) or not (Hamdan v. Rumsfeld).

Even so, the Global War on Terror has unleashed a new geography of detention and torture specifically designed to circumvent the rights of prisoners to contest their detention or be treated humanely. Scholars like Trevor Paglen have tried to unravel and decode these new networks, not by relying on government admissions and documents, but by finding evidence on the ground. For example, the Terminal Air Project, who's work was featured in Paglen's book "Torture Taxi," is a community of researchers and aviation enthusiasts who have meticulously recorded tail numbers of unregistered flights as they took off and landed at airports around the world. Many of these secret flights were part of the Extraordinary Rendition program, and the group's website offers interactive maps of flights from places like Smithfield, North Carolina, near the headquarters of Xe (formerly Blackwater Worldwide) and Symany, Poland, or Amman, Jordan.

You can read more about Paglen's work on Extraordinary Rendition in "An Atlas of Radical Cartography," which includes a map of the rendition flights. That map was also incidentally turned into a billboard on LA's Wilshire Boulevard in 2006 (pictured below). But this trend is not limited to fighting terrorism. In the past we have also mentioned efforts to detain migrants in isolated areas beyond national borders - sort of like Ellis Island on steroids.


The founding fathers were afraid that the remote corners of our own republic, separated by vast distances, could afford an ill-intentioned government an easy means of ferretting away undesirable opponents. They probably never could have imagined the government holding prisoners on a foreign naval base, or in a secret CIA prison, or even aboard an aircraft that didn't touch down, to circumvent the right of habeas corpus. Though they probably knew quite a bit about prison ships.

Obama Sets Out Postition on Future of Guantanamo Detainees

BOULDER, Colorado -- President Barack Obama Thursday laid out his positions on closing the Guantanamo Bay prison camp, handling the remaining detainees, government transparency, and combating terrorism.

Obama reiterated his pledge to close down the facility, and in the same stroke dismissed fears about relocating detainees to American soil. He cited the ability of the federal prison system to safely hold these prisoners until a final resolution of their cases can be reached, adding that no one has ever escaped from a federal supermax prison, and that they already house hundreds of dangerous terrorists.

The president broke detainees down into five categories and explained how each will be handled:

1. Detainees found to have committed criminal acts will be tried in federal courts.
2. Detainees found to have violated the rules of war will be tried by military commissions, a position the White House articulated earlier this week. However, Obama pledged that he will stop some of the legal practices of the previous administration, including allowing in heresay evidence and evidence gathered as the result of torture.
3. Detainees who have been ordered released by US courts will be released forthwith, though not into the United States, as some had inexplicably feared.
4. Detainees who can be transferred safely to another country for detention, of which there are roughly 50.
5. Detainees who cannot be prosecuted but can also not be released because they "pose a clear danger to the American people."

Obama discussed this last category at length, though he did not say specificially how they will be handled. He did state that, "We must have clear, defensible and lawful standards for those who fall into this category. We must have fair procedures, so that we don't make mistakes. We must have a thorough process of periodic review so that any prolonged detention is carefully evaluated and justified."

Obama stated that as many as 250 detainees could be safely moved to the United States, which suggests that the administration will not be seeking to pare down the numbers of detainees through swift prosecutions and relocations within the next year, which we had earlier said was a possibility. While the 50 or so who are eligible for relocation to another country will likely be transferred soon, as many as 100 could be facing long-term detention in the US without being charged, which is the number that Secretary of Defense Robert Gates cited last month.

Here is the entirety of President Obama's speech:

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I support the president for saying unequivocally that the camp at Guantanamo must be closed, and closed soon, and that there is no reasonable argument against relocating them to prisons on US soil. It still remains to be seen if the system of military tribunals will be workable and fair, even under the new parameters. And the category of detainees that will not be released or charged poses a conundrum without any easy resolution, and while the president's candor was refreshing, the problem remains no less vexing. It appears that we will still have at least a few dozen detainees who are denied the right of habeas corpus for an unforeseen period in the future; at least we can take some comfort in the fact that they will no longer be imprisoned in a legal black hole.

Also on Thursday former Vice President Dicky Cheney, speaking at the American Enterprise Institute (where he is now a trustee), decided to take the opportunity to continue his campaign of fear-mongering and justify and rationalize his indefensible record of torture, Constitutional violations, and obfuscation.

Wednesday Links: Screw you, GPS

BOULDER, Colorado -- This week we offer you new rights for Gurkha soldiers, stomach-turning photos of children dressed like adults, and Russia's war on GPS.

Urban Oyster: Brewed in Brooklyn. After twelve months of researching, interviewing, and exploring the streets of Brooklyn, Urban Oyster, which offers unique, hands-on experiences in some of New York City’s most fascinating neighborhoods, is ready to launch. In two weeks their new tour on the history of brewing in Brooklyn will start, and they will be offering their bus tour of the Brooklyn Navy Yard. If you're in New York, this is definitely the way to see some of the city's out of the way places.

Gurkha Justice Campaign: Jai Mahakali, Ayo Gorkhali! Nepalese Gurkhas have long served in the British army and are renowned for their courage and tenacity. Despite this, they have been denied the right to become British citizens or even reside in the UK. The campaign to win them this right won a huge victory today when the British Home Secretary announced that Gurkhas who have served four years in the armed services would be allowed to settle with their families in Britain.

Financial Times: Why interview anyone else? The rivalry that may play out between Russian President Dmitry Medvedev and Prime Minister Vladimir Putin over who will stand in the 2012 elections is interesting, by the FT's reporter may want to ask someone other than a longtime Kremlin stooge with close ties to the intelligence apparatus.

Baseball Analysts: The new Yankee Stadium is three times better than any other ballpark. And its premium seats are six times better, which is why they cost $1,250 (down from $2,500 on opening day) as compared to a league average of $203 for front-row seats.

Youtube: Get a three-course meal for a dollar. Take a gleeful romp through the bodega economy of the Bronx, which has rendered it, and much of inner-city America, a food desert. Why eat fresh produce when you can get two honey buns and a forty for $2.50?




Jezebel: Which one is the tireless human rights campaigner? In case you are confused, here is a rundown to help you distinguish between anti-death penalty advocate Sister Helen Prejean and beauty pageant loser Carrie Prejean.

Anna Skladmann Photography: Russia has pageants, too. These aren't beauty pageant photos, but they possess the same creepy aesthetic of children's pageants in which these young Russian girls and boys are made to ape the poses, mannerisms and dress of Las Vegas strippers. The results are terrifying (as pictured above).

Zagolovki: GLONASS will dominate the heavens. GLONASS, the Russian government's answer to America's GPS satellite navigation system, is having trouble catching on. Perhaps that is because it is unreliable, and they have yet to develop any sort of workable, hand-held consumer electronics that can interact with the system. But now the government is going to make people use it, by banning any foreign navigation devices that do not use the GLONASS frequency.

New York Times: One man's freedom fighter. This article needs no introduction. I will just say that writing an imperialist travelogue of Israel does not help convince people that the New York Times is not part of a vast liberal Jewish media conspiracy.

Colorado Senators Against Relocating Guantanamo Detainees to State

BOULDER, Colorado -- Colorado's US Senators Mark Udall and Michael Bennet voiced their opposition Wednesday to any proposal to relocate detainees from Guantanamo Bay to their state.

The senators spoke up when California's Dianne Feinstein suggested that Colorado's federal supermax prison, Florence ADMAX, which houses the country's most dangerous criminals, would be a suitable location for the detainees. Feinstein also said that her own state could house the inmates: "We have maximum security prisons in California eminently capable of holding these people as well and from which people - trust me - do not escape."

Feinstein is right, and I have not heard any protest from either Colorado senator about how the state already houses over 4,000 federal prisoners. In fact, despite the state's moderate crime rate (ranked 25th in the country - the definition of moderate), it has experienced the country's second-highest rate of prison growth since 1979 (trailing only Texas), thanks in large part to the vast network of federal prisons. During that time period, the number of state and federal prisons in Colorado has increased from seven to 32, including six federal facilities.

I was so incensed by the senators' reaction that I composed a letter to both of them, reproduced here:

I was extremely disappointed by your position on the relocation of prisoners from the Guantanamo Bay prison camp. Why not Colorado? It is especially hypocritical for a senator from Colorado to be so against relocating them here, since we gleefully accept the most dangerous criminals from the federal system, turning our state into the country's Gulag.

Colorado is already home to the country's most dangerous criminals at Florence's ADMAX, who are likely more dangerous than the handful of Guantanamo detainees that the federal government has determined don't even warrant immediate prosecution.

Guantanamo Bay is a stain on America, and you are keeping it open by pandering to the most base, ludicrous, irrational fears of the American people. These are not supercriminals, and they can be easily handled like any other inmates at ADMAX or any other maximum-security facility in the state. Why do you have no faith in the federal prison system? These prisoners have rights to due process, and we should not keep them sequestered illegally beyond the reach of the Constitution. They can be safely detained, tried, and convicted in Colorado or any other US state. The focus should be on closing Guantanamo, not passing this hot potato to another jurisdiction. Shame on you, sir, for slowing the closing of one of the Bush administration's worst legacies.

Perhaps the senators have been watching a different science fiction movie, and instead they support sending the detainees to Ceti Alpha V.

Still 35 and Counting: Colorado Senate Defeats Death Penalty Ban

BOULDER, Colorado -- Colorado remains among the ranks of the 35 states that have retained capital punishment. On May 6, the state senate defeated a measure to repeal the state's death penalty statute by one vote. This was the same narrow margin by which the measure had passed the state's House of Representatives two weeks earlier.

The bill, HB 1274, was introduced by House Speaker Paul Weissmann at the beginning of this year's legislative session and sponsored by Families of Homicide Victims and Missing Persons, or FOHVAMP, a Colorado-based victims rights group. The proposed law would have eliminated the state's death penalty and then used the savings to the state to fund the investigation of cold cases.

During the senate debate, the bill was actually stripped of all language pertaining to the death penalty, and an amendment was introduced that would provide funding for cold case investigations through surcharges on traffic and felony fines. The death penalty ban was restored in the final version that the Senate voted down.

The combination of these two objectives into one bill has drawn a lot of controversy. Prosecutors across the state, including Attorney General John Suthers, railed against the bill, claiming that abolitionist groups were manipulating grieving families by dangling investigations into unsolved murders in front of them if they supported the ban.

As an organization, FOHVAMP has only sought the abolition of the death penalty because they feel it is a misallocation of the state's law enforcement resources. They have worked to distance themselves from both anti-death penalty groups and national victims advocacy organizations. FOHVAMP is not a large or well-funded organization; rather, they are focused on their goal of finding funds to investigate Colorado's more than 1,400 unsolved murders, and perhaps more importantly, providing a forum for families to grieve together.

The bill's proponents were accused of providing false hope to these families with this bill. But prosecutors and politicians continually extended the false hope to the families of homicide victims that the imposition of the death penalty will provide some measure of closure for them. But there is no closure to be had from this lengthy, arduous process that usually lasts for more than a decade and only ends in more death, more suffering, and one more grieving family.

And it is wholly disingenuous for prosecutors to suggest that grieving families were used by abolitionists in this fight. Firstly, FOHVAMP members are not led down a primrose path, deluded into believing that every last killer will be brought to justice, and to suggest so is offensive. Secondly, families that are in favor of capital punishment are gleefully paraded in front of the press by prosecutors when they seek death, while families that might be opposed are shuttered away. I guess prosecutors don't like it when someone suggests that they don't speak for victims' families.

Just as Supreme Court Justice Potter Stewart said that being sentenced to death is like being struck by lighting, seeing your loved one's murderer put to death is equally arbitrary and random. Since 1967, only one person has been executed in Colorado, though the state has sought death 130 times. The lone execution was in 1997, when Gary Lee Davis was put to death for the brutal kidnapping, torture and murder of Virginia May in Adams County in 1986.

As a death penalty opponent, I must applaud FOHVAMP's efforts as admirable and shrewd. But I find the moral calculus in discussions about the death penalty troubling. Several states have recently looked into abolishing the death penalty as a means of closing budget shortfalls, and that was certainly a major reason why this Colorado bill nearly carried through the legislature. But putting people to death for their crimes is either morally right or it isn't; it is a societal necessity or it isn't. We should not be debating the costs, but the moral implications. Frankly, most of the debates on the utility of capital punishment never really hinge on utilitarian arguments, since the preponderance of evidence so heavily favors abolition. But if the debate is going to remain on an emotional level, then it is good to see a few grieving families on the side of abolition.

Sending Guantanamo Detainees to the Phantom Zone

BOULDER, Colorado -- On Friday, the Obama administration announced that they would be revamping the system of military tribunals established in 2006 to try terrorism suspects held at the Guantanamo Bay prison camp. The announcement seemed to come as a reversal of pledges the president had made to try the detainees in federal courts or established courts-martial.

Apparently, the government is worried that the previous administration's systematic program of torture and denial of basic rights may hinder prosecution in normal American courts. But basically Obama is making the same argument that Bush officials did: the pesky Constitution keeps getting in the way of fighting the Global War on Terror. But the decision may also be linked to the problems the government is having in finding a suitable home for the remaining detainees once the prison at Guantanamo is closed in 2010. Military tribunals would allow for speedier prosecution of the remaining detainees, meaning fewer would have to be relocated when the camp is closed.

Last month Secretary of Defense Robert Gates told the US Senate that of the 240 remaining detainees, there could be as many 100 that would not be tried or could not be transferred to another country, which means they will likely have to be relocated to US soil. This has whipped many communities that host federal prisons into a panic, and members of Congress have been scrambling to try and prevent these prisoners from being transferred to their districts. Apparently, these people are so diabolical and terrifying, if transferred to the US, they will likely immediately escape and set up the new Caliphate, with its capital in Leavenworth, Kansas.

Let us not forget that the candidates for this transfer are those detainees that the government will not even bother to prosecute, meaning that they are probably poor Pakistani farmers that their home government does not want to take back, lest they hasten the toppling of the government. But they are being portrayed as if they are General Zod and his minions, people so dangerous that they had to be cast into the Phantom Zone for all eternity in Superman 2.



There are some very unseemly and dangerous characters who will be searching for a home when Camp Delta is mercifully shuttered, but the notion that they will escape is ludicrous. The Justice Department does not publish yearly statistics on prison escapes, but the numbers that are available are remarkably low. According to data compiled by Richard F. Culp and published in The Prison Journal in 2005, in 1998 (the last year for which data were available), there were 0.4 prison escapes for every 100 prisoners in America's state and federal prisons and jails. That year, there were 6,530 escapes, the vast majority of which were prisoners who had gone AWOL during an authorized leave or walked off of a minimum security work site. Nearly all were recaptured in short order, and this was out of a prison population of 1.8 million inmates.

In the federal system, the figures are even more encouraging. Though official data are unavailable, I did a Lexis-Nexis search of US newspapers, which revealed that in 2008, there were four escapes from federal prison. Three of the fugitives escaped from minimum-security facilities, while the fourth was in a medium-security prison. All but one of the escapees has since been apprehended - only Eddie Davidson, who walked off Colorado's Florence Prison Camp in July, evaded capture. Tragically, just a few days later, he was found dead, along with his wife and daughter, the result of a murder-suicide. In 1999, there was only one escape from federal prison, and that was the first in four years.

The other puzzling thing about this controversy is that the federal government has already constructed a facility tailor made for terrorists right here in the U.S. and A. The Communication Management Unit in Terre Haute, Indiana (dubbed "Little Guantanamo" and mentioned here before) already houses a couple dozen or so "terrorists," most of them of Middle Eastern descent, in a medium-security wing. If the CMU is good enough for John Walker Lindh or the Lackawanna 6, why not Khalid Sulaymanjaydh Al Habayshi? Granted, the facility would have to be enlarged, but no one is afraid that Terre Haute will be overrun by escaped terrorists.

But not every prison town in America turns into a bunch of NIMBYs when the feds try and move Islamic terrorists there. Hardin, Montana, has actually volunteered their brand new 460-bed prison for the Guantanamo refugees, which currently sits empty and deeply in debt. Montana's senators have tried to put the kybosh on the plan, but one town official said, "Somebody has to stand up and put [the Guantanamo prisoners] in their backyards. It's our patriotic duty." He added, sensibly, "You have hardened criminals in jail all around the state, you have sexual offenders. When they're in jail, they're not a whole lot different."

Well, perhaps the Guantanamo detainees are not all sex offenders, but the notion that they are too dangerous to ever set foot on American soil, or be allowed access to due process in America's courts, is ludicrous. To defend this move as shrewd or prudent gives the president too much credit. I am tired of politicking when it comes to civil liberties and basic Constitutional rights, and Obama has backtracked on what was, for me, a key promise in his campaign. So much for the kinder, gentler GWOT.