The Careless, Corrupt Program That Begat Preventive Detention and Torture

By Russ Wellen

The Obama administration has just come up with another way to sweep torture under the rug -- allowing detainees facing the death penalty to plead guilty without a full trial. What's the point of that? The New York Times explains:

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques.

If you're thinking that's as self-serving as it is transparent, never fear -- the administration also has the interests of detainees at heart:

It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

Expediting martyrdom -- never let it be said the United States isn't a full-service detainer.

There's something temporary about the word "detain" -- as in "detained for questioning." Also, harkening back to school days, "detention" sounds like a token punishment. But it's beginning to look like many of the detainees held in preventive detention in Guantanamo will be detained unto all eternity. And we all know their punishment has been anything but token.

How did we get ourselves -- and hundreds of likely innocent prisoners -- into this fix? A good place to start is with the methods used to apprehend many of them. Turns out, taken together, they served as the catalyst for not only preventive detention but torture.

At the moment, the administration and the Pentagon are having a "what do we do now?" moment over the detainees. In a report for the Heinrich Boll Stiftung (Foundation) entitled Beyond Guantanamo: Restoring U.S. Credibility on Human Rights, Thomas C. Hilde lays out the alternatives (exclusive of the Obama administration's absolutely revolutionary idea about pleading guilty without trial):
1. Military tribunals
2. Preventive detention and a national security court
3. Limited preventive detention for identifiable combatants
4. Civil criminal trials -- try or release.

Just like the word detainee fails to do justice to imprisonment without trial, the positive connotations of the word "preventive" obscure that it's not only illegal, but in duplicate. When applied to an attack on another nation, the term refers to the intention to head off future threats. But preventive leapfrogs right over "preemptive," which, while also illegal, describes a threat that's at least perceived as immediate.

Of course, the Obama administration has ruled out prosecuting those responsible for torturing the detainees. But, as Mark Drumble, author of Atrocity, Punishment and International Law, points out in Professor Hilde's report, justice may not be served by prosecution anyway: "With pronouncement of sentence comes a rush to closure, absolution for the acquiescent, and the evaporation of collective responsibility."

According to Drumble, gray areas exist between prosecuting and refusing to:

. . . the accountability process remains narrowly oriented to incarceration following. . . criminal trials. It is not a broader process that is yet comfortable with meaningful restorative initiatives, indigenous values, qualified amnesties, reintegrative shaming, the needs of victims, reparations, collective or foreign responsibilities, distributive justice, or pointed questions regarding the structural nature of violence in the international system.

Ah yes, the "structural nature of violence": Realpolitickers wouldn't touch that one with a ten-foot pole. If violence weren't structural in nature they wouldn’t have jobs in the national security apparatus.

Bring 'em back alive

It all began when we started offering money for information: from $5,000 (for alleged Taliban) to $25,000 (for alleged al-Qaeda). In 2005, the Associated Press reported on this not uncommon system, as practiced in Afghanistan, for capturing the enemy:

The U.S. Rewards for Justice program pays only for information that leads to the capture of suspected terrorists identified by name, said Steve Pike, a State Department spokesman. Some $57 million has been paid under the program, according to its web site.

Something got lost in translation, though:

In March 2002. . . Afghan intelligence [personnel] offered rewards for the capture of al-Qaida fighters — the day after a five-hour meeting with U.S. Special Forces. Intelligence officers refused to say if the. . . United States was paying the offered reward of 150 million Afghanis, then equivalent to $4,000 a head.

But. . .

That day, leaflets and loudspeaker announcements promised "the big prize" to those who turned in al-Qaida fighters. …

A former CIA intelligence officer who helped lead the search for Osama bin Laden told AP [that] U.S. allies regularly got money to help catch Taliban and al-Qaida fighters. …

[A] prisoner said he was on his way to Germany in 2001 when he was captured and sold for "a briefcase full of money" then flown to Afghanistan before being sent to Guantanamo.

"It's obvious. They knew Americans were looking for Arabs, so they captured Arabs and sold them — just like someone catches a fish and sells it," he said. … A detainee who said he was a Saudi businessman claimed, "The Pakistani police sold me for money to the Americans."

But when information seeking is bypassed and, instead, bounty hunters are granted the authority to haul in suspects without warrants, guess what takes a holiday? That's right -- evidence.

Professor Hilde writes:

The legal cases of these allegedly dangerous detainees are corrupted by the methods of evidence-collecting. Evidence gathered on the "battlefield" may be admissible in regular wars, but the traditional concept of "battlefield" means something quite different in the context of asymmetrical war with terrorist groups.

And that describes the best-case scenario in which evidence actually exists. But those collecting rewards for terrorists were only interested in the money, not evidence. In fact, even just evidence that those apprehended were fighters was nonexistent because insurgents wear neither uniforms nor dog tags. With insurgents, there's no regurgitating rank or serial number.

Complicating the issue further, when a people who are occupied get a load of the invading force's weaponry, their first thought is, how can I get them to use their firepower to my advantage? For instance, when the English arrived in Roanoke, it didn't take long before the natives were conspiring to sic the English on enemy tribes.

Afghans either informed on or delivered personal enemies, along with any old warm body. As usual, the Bush administration acted without feeling at all constrained by history. The net result was that by paying a small fortune for innocent civilians and shipping them off to black sites and Guantanamo, Bush & Co. came off looking like monumental suckers, not to mention an embarrassment to the United States.

As for how bounties affect detention, let's first examine what William Lind recently wrote:

. . . solve the issue of detainees at Guantanamo and elsewhere by designating all of them as what they are, namely Prisoners of War [who] may be held until the war is over or exchanged.

But there's no expiration date on the war on terror. Not only won't there be any prisoner releases or exchanges, but, despite evidence they're even fighters, the detainees were designated enemy combatants and, in effect, treated like war criminals.

Then, in the absence of evidence or even any idea about what information a detainee might have been privy to, we torture them until they get the message. Instead of repeating "I don’t know," they make up stories. Or, to put it another way, if an administration is salivating at the thought of torturing, instituting a bounty system is a great way to facilitate the implementation of said torture regimen.

Bounties, by sheer dint of preceding and laying the groundwork for illegal detention and torture, are equal to them in culpability for the havoc we've wreaked on detainees. To preclude preventive detention and torture in the future, we need to enforce a policy of paying only for information, not scalps.