HAW at the AHA
January 8-11, 2004 in Washington DC

Staughton Lynd, REMARKS at Historians Against the War (HAW) Roundtable on "Imperial Crisis and Domestic Dissent" at American Historical Association, Jan. 2004

In both foreign and domestic policy the Bush Administration practices the doctrine of preemption. Is there a possibility that a developing nation has or might some day come to possess nuclear weapons? Bomb 'em back into the Stone Age -- unless, of course, the nation is Pakistan, India, or Israel. Does the United States government lack full control over the future actions of a person apprehended in Afghanistan, a dark-skinned illegal alien, or a United States citizen with a funny name, like Hamdi or Padilla? Might as well call 'em "enemy combatants" and lock 'em up to make sure they stay out of trouble.

Consider the domestic variant of preemption. Indefinite administrative detention, without charges and without access to counsel, is not entirely new in this country's experience. Indeed Mr. Korematsu filed a friend of the court brief in the Guantánamo cases before the United States Supreme Court.

However, World War II had ending points: V-E Day and V-J Day. In contrast, Secretary Rumsfeld has said that the war on terror may continue indefinitely. Accordingly, detainees under the Bush Administration must fear what to a prisoner is more burdensome than any deprivation of material conditions of confinement, namely, total uncertainty as to how long detention will continue and as to what, if anything, the prisoner can do to free himself.

Unlike Secretaries Ashcroft and Rumsfeld, even the apartheid regime in South Africa introduced indefinite detention gradually, as it were with a sense of shame. Prime Minister Vorster sponsored a 90-day detention law in 1963. Two years later the initial detention term was doubled to 180 days -- just as it is now in Israel -- and in 1967 South Africa made it open-ended. Deaths in detention began within a few months of passage of the first South African detention law, Allister Sparks tells us. In 1977 prisoner Stephen Biko was murdered. ⁽¹⁾

At Guantánamo and other sites under the control of the United States, human beings are confined alone in small cells for 23 or more hours a day. International law provides that prisoners of war have

the right to congregate, to elect a leadership to represent the group to the detaining authorities, to prepare their own food, to have musical instruments and even knives, to labor for pay, and -- best known of all the [Geneva] convention's provisions -- to withhold information beyond name, rank and serial number. ⁽²⁾

Departing from these mandates and from the practice of the United States during the Vietnam war, the invasion of Panama, and Gulf War I, ⁽³⁾ the Bush Administration denies all these rights to detainees at Guantánamo and elsewhere. Instead they are treated like inmates at the so-called supermaximum prisons that have sprouted across the United States during the past several decades. The commander of Camp Delta in early 2003 was the former superintendent of a high security prison in Indiana. ⁽⁴⁾ Reporter Joseph Lelyveld was told that about a third of the MPs on duty at Delta had worked in their civilian incarnations as police and corrections officers. ⁽⁵⁾

Although there have been at least 28 attempted suicides at Guantánamo, at least 18 of the attempts in 2003, to my knowledge no one held in indefinite detention there, or at the navy brig in South Carolina where Messrs. Hamdi and Padilla are confined, has yet been killed. It may be quite otherwise in the prisons of the various other nations to which the United States sends some enemy combatants for forceful interrogation, characterized by a former U.S. Navy intelligence officer as "torture lite." ⁽⁶⁾

Indefinite administrative detention is a departure, not from international law precedents painfully cobbled together during the past century, but from the central concept of Anglo-American criminal law almost eight hundred years old.

That concept is habeas corpus. It means that the government cannot pick up a person off the street and whisk them away to no one knows where for nobody knows how long. It requires the government to produce the detainee in open court, to specify any criminal charges it may wish to lodge against him or her, and to provide access to a lawyer and to some degree of due process.

All this began as Chapter 39 of Magna Carta which stated: "No free man shall be arrested or imprisoned or disseised [that is, deprived of his property] or outlawed or exiled or any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land." The meaning of Chapter 39 came to be more particularly defined during the English revolution of the 17th century. According to historian Peter Linebaugh, it was Sir Edward Coke who asserted that chapter 39 declared the ancient law of England and specified that it prohibited torture, provided trial by jury, and required what Coke called "due process of law."

And Coke paid for saying so. He was dismissed as Chief Justice of King's Bench and imprisoned in the Tower. There he helped to draw up the Petition of Right of 1628 and worked on a book about Magna Carta. As he lay dying, "his chambers were ransacked and his manuscripts confiscated. At the beginning of the English Revolution Parliament ordered their recovery and they were published in 1642."

For the time being, habeas corpus is still the norm in the United States. Under Article I, Section 9 of the United States Constitution, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." A remarkable decision by the Supreme Court of the United States in the midst of our Civil War, Ex parte Merryman, ⁽⁷⁾ holds that neither the President's officers nor the President himself can suspend the writ, even in time of war.

This is the ancient tradition now up for grabs.

Then there is what Arthur Schlesinger, Jr. calls the "fatal change in the foreign policy of the United States." ⁽⁸⁾ President Bush, writes Professor Schlesinger, "has replaced a policy aimed at peace through the prevention of war by a policy aimed at peace through preventive war."

During the long years of the cold war, Schlesinger assures us, "preventive war was unmentionable. Its advocates were regarded as loonies." Gulf War II "was not, as World War II was, forced upon the United States. It was not, like the Korean War, the first Gulf War, and the war against the Taliban, a response to overt acts of aggression." Note that Professor Schlesinger approves of the war against Afghanistan, explaining: "the Afghan war was necessary, since the Taliban government refused to turn over bin Laden." And then a most peculiar sentence: "Nor did the United States [in Gulf War II] drag itself incrementally into full-scale war, as in Vietnam"; as if to say that genocidal preventive war is OK if you ease into little by little, as in King Philip's War in seventeenth century New England.

Not coincidentally, Professor Schlesinger's essay in The New York Review of Books ends with a quotation from John F. Kennedy. And this is just what is so wrong-headed about the essay: the proposal that since World War II, and especially between 1960 and 1963, United States foreign policy was defensive and multilateralist, not aggressive and unilateral.

Really? What about the overthrow of democratically-elected governments by the United States acting alone in Iran in 1953, Guatemala in 1954, and Chile in 1973? What about the United States' unilateral sabotage of the 1954 Geneva Agreements concerning Vietnam, because it was feared that Ho Chi Minh would win a democratic election? What about the invasions of Grenada, Panama, and, through the contras, Nicaragua, in the 1980s? What about resistance to democratic elections in Palestine and Iraq today, again because some horse whom the United States government opposes might be first to the finish line?

Do I hear the response, those things happened when Republicans were in office? Let's talk about Cuba and Vietnam, when cold war Democrats like the Kennedys, McGeorge Bundy, the Rostows, and yes, Arthur Schlesinger, Jr., made decisions. Was the Bay of Pigs invasion defensive and multilateral? As for Vietnam, we learn from the Pentagon Papers that as early as 1961 "the United States public was to be told that Washington had a legal right to deploy troops in response to actual Communist transgression, while privately Washington would decide to act because of 'potential' Communist action." Bundy, for one, "concluded that a preemptive strike was desirable." What Richard Barnet calls "the myth of the blueprint" gave "credibility to the idea of preventive war" for the entire group of top decisionmakers: "If the Communist design to rule the world is implacable, it makes sense to fight them now in a small war when they are relatively weak [rather] than to wait for Armageddon."

Barnet generalizes: The Vietnam war was "the disease of an entire ruling class," including, we may add, two Democratic presidents and Professor Schlesinger. ⁽⁹⁾

Gulf War II does not represent a fatal change from the policy that got us into Vietnam. It is the same old used car with a new coat of paint. As has been true throughout the period since World War II, any government that threatens capitalism can expect a United States-sponsored coup if that is possible, or a United States invasion if required. The essential character of the regime change imposed will be that made evident in Mr. Bremer's Order 39 of September 19, 2003, which announced that 200 Iraqi state companies would be privatized; decreed that foreign companies can retain 100 percent ownership of Iraqi mines, banks and factories; and allowed these firms to move 100 percent of their profits out of Iraq. ⁽¹⁰⁾

So what is to be done?

We can do at least two things.

First, we can seek out and encourage veterans who may wish to share their experience. We should try to make contact with returning veterans and their families, listen to what they want to say, and if they are willing, include them in teach-ins that we organize. In this way we can combine the teach-ins against war in Vietnam that took place in 1965 and 1966 with the later Winter Soldier forums in which returning vets told their stories.

Second, however distant we may be from military combat, the arenas in which intellectuals express ideas are near at hand. Freedom to teach and speak independently is and will remain an issue on every campus in the United States. After the effort in 1969 to commit the American Historical Association to opposition to the Vietnam war, there was formed in 1970 an Ad Hoc Committee on the Rights of Historians, a subcommittee of which investigated individual violations of academic freedom. A resolution in support of academic freedom was passed by the business meeting of the Organization of American Historians in April 2003. Hopefully the American Historical Association will do likewise.

1. Allister Sparks, Beyond the Miracle: Inside the New South Africa (Chicago: University of Chicago Press, 2003), Chapter Eight.

2. Joseph Lelyveld, "In Guantánamo," The New York Review of Books, Nov. 7, 2002.

3. Amicus brief, Hamdi v. Rumsfeld, n. 87, citing Daryl A. Mundis, "The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts," American Journal of International Law, v. 96 (2002), and Major Timothy P. Bulman, "United States Law of War Obligations During Military Operations Other Than War," Military Law Review, v. 159 (1999).

4. John Vannatta was named on the Lehrer News Hour, Jan. 22, 2003, and in the New York Times, Apr. 24, 2003, referring to "Command Sgt. Maj. John Vannatta."

5. Lelyveld, op. cit.

6. On suicide at Guantánamo: New York Times, Feb. 7, Feb. 20, Apr. 24, May 29, and June 17, 2003, and The Guardian, Apr. 23, 2003. The most serious suicide attempt involved a Saudi school teacher named Mish-al Hahrbi. He "became desperate over not knowing what his future held and tried to hang himself," suffering severe brain damage.

On the "rendition" of so-called enemy combatants to such countries as Jordan, Egypt, the Phillipines, Morocco, Syria and Diego Garcia for interrogation: Washington Post, Dec. 26, 2002; Duncan Campbell, "U.S. interrogators turn to 'torture lite'," The Guardian, Jan. 25, 2003; and Nat Hentoff, "The American Way of Torture," The Village Voice, Jan. 31, 2003.

7. 17 F.Cas. 144 (C.C.D. Md. 1861).

8. Arthur Schlesinger, Jr., "Eyeless in Iraq," The New York Review of Books, Oct. 23, 2003.

9. Ralph Stavins, Richard Barnet and Marcus Raskin, Washington Plans An Aggressive War (New York: Random House, 1971), pp. 34, 39, 194, 252.

10. Naomi Klein, "Bring Halliburton Home," The Nation, Nov. 24, 2003. Ms. Klein argues that Order 39 violates the Hague Regulations and the U.S. Army's Law of Land Warfare. See also David Applebaum, "The New American Empire -- Post-Colonial Iraq," unpublished, emphasizing that Order 39 and companion edicts (Order 37, Tax Strategy for 2003, Sept. 21, 2003; Order 38, Reconstruction Levy, Sept. 21, 2003; Order 40, Bank Law, Sept. 24, 2003, all at http://www.cpa-iraq.org/regulations/index.html#Regulations) violate Article 53 of the Fourth Geneva Convention: "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destructions is rendered absolutely necessary by military operations."