Lessons for India in homeland security
CYBER AGE
by ND Batra
From The Statesman
India has much to learn how comprehensively and efficiently the United States of America goes about managing its homeland security by keeping a hawk-eye on the Islamic jihadi menace.
Last week, two men from Georgia ~ Syed Haris Ahmed, 21, a naturalised American of Pakistani origin and Ehsanul Islam Sadequee, 19, an American by birth and of Bangladeshi descent ~ were charged with planning attacks against the World Bank headquarter in Washington DC, the US Capitol and other civilians targets. Both were accused of preparing for violent jihad in the USA and abroad after undergoing “rudimentary paramilitary training”. One of them, Sadequee, was earlier charged for having gone to Toronto last year to hobnob with “like-minded Islamic extremists”.
Clearly these two Muslim young men had not actually committed any violent act but were found to be planning and conspiring to do so. Following the preemptive policy of dealing with terrorists, US Attorney David E. Nahmias said: “We no longer wait until a bomb is built and ready to explode.” Similarly, the plot to bomb the Sears Tower in Chicago was at a stage “more aspirational than operational”, according to the FBI, when the plotters were apprehended in June this year. Preemption is preventing acts at the inspiration, aspiration and thinking stage before they become a concrete reality that leads to the kind of train bombings in Mumbai that killed more than 200 people and injured hundreds more on 11 July. However, when reason takes precedence over anger and dismay, it becomes possible to see with clarity that to a great extent most disasters could be anticipated and even prevented.
The concept “what’s anticipated can be prevented” would especially apply to a crucial aspect of India’s homeland security, that is Islamic militant terrorism of which the Mumbai outrage was the latest manifestation. If the worm, jihadi terrorism, has already made its home in India and could surface on any street, as was recently pointed out by a senior Indian journalist in a Wall Street Journal piece, the case for India’s homeland security to be modelled on the US system where since 9/11 not a single terrorist attack has taken place is very strong. Al-Qaida and other Islamic terrorists have not given up on the USA, and they keep trying.
Uncle Sam sleeps with one eye open. Early this year, Congress renewed what to most liberals would be a draconian anti-terrorism law, The US Patriot Act.
The Department of Homeland Security’s constantly changing red, yellow and green alerts have made life a trifle uncomfortable. Personal liberties have been affected, especially in big cities, though most of the USA is as free as ever. Airline travel security checks take longer. But on the whole, there is no fear psychosis in the USA. You wouldn’t feel afraid of walking in the streets of New York or elsewhere; living in America is safer than living anywhere else.
The US homeland security doctrine is coherent, pragmatic and ethical. And it has a simple premise: Choose the lesser evil. It is better to put a few thousand people in jail ~ yes, some of them might be innocent ~ than let terrorists strike, which might push millions and millions of people into a state of perpetual fear.
The Patriot Act, which allows intelligence and law enforcement authorities to go into places of worship, investigate the working of charities and snoop on telecommunication of suspected militants is not what a free society should do. But it is a lesser evil than letting Islamic militants take advantage of constitutional freedoms to commit mass murders.
From Pota to its successors, Indians think up marvellous schemes but lack the will to implement them. A mantra is no substitute for action.But there’s hope. Contrary to popular expectation, India showed remarkable composure in the face of the dastardly acts in Mumbai. Sure the Sensex wobbled for while but it stabilised, reinforcing the hope that economic recovery and growth is on a firm footing.
There was some tough talk by politicians but the fire did not spread. Which is no guarantee for the future, of course. Of course a similar pattern of attacks has been taking place in Pakistan too, though it is between Sunnis and Shias. If the pattern is the same, the same underlying force, Sunni Wahabisim, must be operating in both countries. In that case, India and Pakistan have a common enemy, though unfortunately they don’t see it that way. That’s why the continuation of dialogue is so important because with the course of time, perceptions would change. When terrorists’ bonds with local people become weak, it would be easy to gather intelligence, and isolate and annihilate terrorists’ networks. That’s what is being done in the USA ~ destroying the infrastructure that supports terrorists’ networks.
Simi and LeT would cease to exist if they are isolated from the local people. Indian Muslims must feel reassured that India is their country and that their children have a future. That kind of social and cultural re-education is important. India’s two-pronged strategy for fighting terrorism should be: Ruthlessly implement a no-holds-barred policy of dealing with militants. Secondly, continue pursuing peaceful settlement with Pakistan through a policy of cool and cautious engagement at multiple levels, including trade and widespread official and people-to-people contacts.
The first step necessitates widespread human and digital intelligence gathering and the rigorous enforcement of terrorism laws already in place.
The second step requires sensible diplomacy with total control over hotheaded political rhetoric. Flaming tongues can sear hearts.
Dealing with Pakistan is not easy, especially when the Pakistan government does not have full control over what is happening there. Apart from the continuous simmering rebellion in Baluchistan, some powerful sections of society in Pakistan, including the ISI, are feeding and supporting the Taliban to re-establish their hold in Afghanistan. And they are not done with Kashmir, regardless of the opening of bridges and India’s generosity in giving millions of dollars to earthquake victims.
Tuesday, July 25, 2006
Tuesday, July 18, 2006
DO NOT MESS UP WITH INDIA
Pre-emption needed, not despair
CYBER AGE by ND Batra
From The Statesman
A nation that has been gradually and steadily building up its economic and technological strength to raise a billion people to a decent standard of living and seek a rightful place in the global community cannot allow itself to be drowned in pessimism.
The quick return to normalcy of work and life in Mumbai, one of the greatest cities in the world, and a city whose creative dynamism sums up the best of India, has been so assuring that there’s a certain gut feeling ~ that India shall overcome. However, it hurts badly ~ irrespective of whether one lives in India or abroad ~ because we have become so much emotionally bonded and identified with what is India and what India ought to be. Yet, there is so little room for despair that we end up consoling ourselves with India’s resilient spirit every time there is a fresh attack. Resilience is not a substitute for action.
Terrorism is a local and global phenomenon and it must be fought at every level with imagination, intelligence and persistence, with all the available resources, as the USA has been fighting. Americans have come to believe that terrorism is preventable and must be prevented whatever the cost.
The 11 September attacks have been a kind of sourcebook for the US Homeland Security and whenever any attack occurs anywhere in the world, London, Madrid or Mumbai, the authorities redouble their vigilance, and freshen up their plans to meet any contingency. It could happen here, they acknowledge, but it must not, and that’s the steely determination writ large on their faces.
As soon as the images of wrecked trains and mutilated bodies appeared on American television screens, Homeland Security authorities shook themselves up once again and reassured the people that the New York commuter train system ~ that carries 4.5 million Americans to and from work every day ~ is well-protected and under constant watch, though there is no place for complacency. More patrolling, more bag searches, more surveillance, more inconvenience, more protests, but no letting up. Altogether 32 million Americans use trains everyday for work and leisure and protecting the vast network of transportation system is not an easy task.
Only a few days before the Mumbai train attacks, US authorities had uncovered a plot to blow up the underground tunnel system that connects New Jersey with New York City.
The discovery of the plot was not accidental or a serendipitous occurrence. The Homeland Security since the 11 September episode has been on the lookout for terrorists in order to pre-empt any kind of attack. They would not allow a failure of imagination and anticipation for America to be taken by surprise again. Apart from the Federal government, every state has a list of potential terrorist targets for which there are contingency plans.
The most common response to terrorism is to wait for the attack to occur and then swing into action; or issue a bravado statement like the one that came from the Indian Cabinet after the Mumbai attacks: “Nothing will deter us from our firm policy to fight this menace till it is wiped out. We are determined to apprehend and bring to justice all those responsible for the evil acts in Mumbai.” As if in response to this jejune statement, a BBC correspondent observed, albeit cynically, that during the last decade so many attacks have taken place in India that no one has been apprehended, no serious action has been taken and eventually nobody cares.
For a moment I thought the BBC correspondent had summed up a history of India in one sentence. Throughout the ages, India has been attacked, and attacked, and attacked… but without any response.
Islamic terrorists in India whether they belong to Students Islamic Movement of India, Lashkar-e-Taiyyaba or some other outfit know that nothing serious would happen to them even if they were apprehended. Politically and financially, they are well provided for; otherwise they would not have been in business so long. Who is protecting them in India?
In the USA and increasingly in Europe, especially after the London and Madrid bombings, there has been a paradigm shift. The policy has been not only to nip the evil in the bud but also to eliminate the evil at the conceptual stage.
The plot to blow up New Jersey-New York rail tunnel, for example, was at the most preliminary conceptual stage, when its thinking head and organiser, an Al-Qaida associate Assem Hammoud, at Lebanese International University, where he taught economics, was arrested along with other suspects in cooperation with investigators in foreign countries. “The primary emphasis has to be,” said NBC’s counter-terrorism analyst Michael Sheehan, “on the investigation and to find and detect any cell that may be plotting against the system.”
In India such plotting cells would not be found in the slums of Mumbai but in places where people think and tinker and assemble. It should not very difficult to find them. Unless India adopts and ruthlessly executes a policy of zero tolerance toward Islamic terrorists, which means using all the available means to hunt them under the law, we would be wondering ~ What after Mumbai: Kolkata, Bangalore or some place where India’s brain, wealth and creativity thrive? India needs to re-balance its priorities, freedom and domestic security.
Despair is not an option for India. Pre-emption is the key to eliminate terrorism.
CYBER AGE by ND Batra
From The Statesman
A nation that has been gradually and steadily building up its economic and technological strength to raise a billion people to a decent standard of living and seek a rightful place in the global community cannot allow itself to be drowned in pessimism.
The quick return to normalcy of work and life in Mumbai, one of the greatest cities in the world, and a city whose creative dynamism sums up the best of India, has been so assuring that there’s a certain gut feeling ~ that India shall overcome. However, it hurts badly ~ irrespective of whether one lives in India or abroad ~ because we have become so much emotionally bonded and identified with what is India and what India ought to be. Yet, there is so little room for despair that we end up consoling ourselves with India’s resilient spirit every time there is a fresh attack. Resilience is not a substitute for action.
Terrorism is a local and global phenomenon and it must be fought at every level with imagination, intelligence and persistence, with all the available resources, as the USA has been fighting. Americans have come to believe that terrorism is preventable and must be prevented whatever the cost.
The 11 September attacks have been a kind of sourcebook for the US Homeland Security and whenever any attack occurs anywhere in the world, London, Madrid or Mumbai, the authorities redouble their vigilance, and freshen up their plans to meet any contingency. It could happen here, they acknowledge, but it must not, and that’s the steely determination writ large on their faces.
As soon as the images of wrecked trains and mutilated bodies appeared on American television screens, Homeland Security authorities shook themselves up once again and reassured the people that the New York commuter train system ~ that carries 4.5 million Americans to and from work every day ~ is well-protected and under constant watch, though there is no place for complacency. More patrolling, more bag searches, more surveillance, more inconvenience, more protests, but no letting up. Altogether 32 million Americans use trains everyday for work and leisure and protecting the vast network of transportation system is not an easy task.
Only a few days before the Mumbai train attacks, US authorities had uncovered a plot to blow up the underground tunnel system that connects New Jersey with New York City.
The discovery of the plot was not accidental or a serendipitous occurrence. The Homeland Security since the 11 September episode has been on the lookout for terrorists in order to pre-empt any kind of attack. They would not allow a failure of imagination and anticipation for America to be taken by surprise again. Apart from the Federal government, every state has a list of potential terrorist targets for which there are contingency plans.
The most common response to terrorism is to wait for the attack to occur and then swing into action; or issue a bravado statement like the one that came from the Indian Cabinet after the Mumbai attacks: “Nothing will deter us from our firm policy to fight this menace till it is wiped out. We are determined to apprehend and bring to justice all those responsible for the evil acts in Mumbai.” As if in response to this jejune statement, a BBC correspondent observed, albeit cynically, that during the last decade so many attacks have taken place in India that no one has been apprehended, no serious action has been taken and eventually nobody cares.
For a moment I thought the BBC correspondent had summed up a history of India in one sentence. Throughout the ages, India has been attacked, and attacked, and attacked… but without any response.
Islamic terrorists in India whether they belong to Students Islamic Movement of India, Lashkar-e-Taiyyaba or some other outfit know that nothing serious would happen to them even if they were apprehended. Politically and financially, they are well provided for; otherwise they would not have been in business so long. Who is protecting them in India?
In the USA and increasingly in Europe, especially after the London and Madrid bombings, there has been a paradigm shift. The policy has been not only to nip the evil in the bud but also to eliminate the evil at the conceptual stage.
The plot to blow up New Jersey-New York rail tunnel, for example, was at the most preliminary conceptual stage, when its thinking head and organiser, an Al-Qaida associate Assem Hammoud, at Lebanese International University, where he taught economics, was arrested along with other suspects in cooperation with investigators in foreign countries. “The primary emphasis has to be,” said NBC’s counter-terrorism analyst Michael Sheehan, “on the investigation and to find and detect any cell that may be plotting against the system.”
In India such plotting cells would not be found in the slums of Mumbai but in places where people think and tinker and assemble. It should not very difficult to find them. Unless India adopts and ruthlessly executes a policy of zero tolerance toward Islamic terrorists, which means using all the available means to hunt them under the law, we would be wondering ~ What after Mumbai: Kolkata, Bangalore or some place where India’s brain, wealth and creativity thrive? India needs to re-balance its priorities, freedom and domestic security.
Despair is not an option for India. Pre-emption is the key to eliminate terrorism.
Tuesday, July 11, 2006
It is good to be an American
A just society
ND Batra
From The Statesman
The American dream is some kind of El Dorado, a state of immense wealth and achievement which when attained, enables a person to exclaim, “Ah! It’s good to be an American.”
You can see it in the life of a man like Andy Grove who survived the Nazis and the communists and entered the USA as a refugee. He worked so hard that he had no place to go except up and up until he reached the stratosphere. He built a microchip empire that runs the information superhighway and serves America’s global interests. But he did not do it through the largesse of affirmative action and racial preferences. Nor does Intel, of which he was the CEO, hire people based on quotas, racial preferences, compensatory guilt, or the need for diversity.
Multinationals thrive on competitiveness, not on affirmative action. But do affirmative action preferences create a just society? For about 40 years, US society has been helping African-Americans and other minority groups to cross the race line by creating for them preferences for jobs, contracts and admissions to universities. In the case of higher education, the original intent was to desegregate and diversify the student population by requiring colleges and universities to lower the admission criteria for minority students. The policy might have worked in some cases.
It has been argued that the rise of Colin Powell, who reached the top in the US military with an extraordinary record of achievements and served the Bush administration as the secretary of state in a very difficult era of American diplomacy, would not have been possible without affirmative action. Affirmative action might have opened the door for Mr Powell but it did not catapult him to the top and make him one of the most esteemed Americans living today. In his book, My American Journey, he wrote, “Equal rights and equal opportunity... do not mean preferential treatment. Preferences, no matter how well intended, ultimately breed resentment among the non-preferred.”
Consider the achievements of Hollywood star Bill Cosby, pop culture’s global icon Michael Jackson, and basketball’s once supreme athlete Michael Jordan. They rose to the top on the basis of their guts and talents. Such remarkable achievements would be diminished if they were correlated with racial preferences and quotas. As Powell said: “If affirmative action means programmes that provide equal opportunities, then I am all for it. If it leads to preferential treatment or helps those who no longer need help, I am opposed.” Powell rose to the top on the strength of his character and the power of his brain. But what about those who live in ghettos, inner cities and rural poverty? “If a history of discrimination has made it difficult for certain Americans to meet standards, it is only fair to provide temporary means to help them catch up and compete on equal terms,” the General added. But there are other voices.
Race, as Prof Cornel West of Princeton says, matters a lot in America; prejudice is widely prevalent, and it is the colour of your skin, not character and merit, that determines where you live and work, and how a policeman treats you in the middle of the night when he sees you at a street corner, or when you go to the airport and you are “randomly selected” for special inspection because you look like an Asian or an Arab-Muslim. But these are the imperfections of a great society. Decades of affirmative action policy, which in reality amounted to creating preferential quotas for minorities, have not created a colour-race-gender blind society. No wonder affirmative action has been getting into disfavour as a public policy. In 1998, California voters ended preferential treatment based on race and gender for public employment, education and contracting by approving a ballot initiative.
Berkeley and other top schools of the California Higher Education System no longer admit African-Americans and Hispanics by lowering the admission standards. For a long time, the dominant mood in the country has been: end racial preferences because they create reverse discrimination. But the question still remains: does diversity of race, religion and opinion matter? Diversity is socially desirable because it engenders new ideas that enrich society and encourages tolerance and acceptance of the USA, which is increasingly becoming multicultural and multiracial.
The challenge is to use affirmative action to give some deserving people a head start without creating entitlements, to make possible the rise of people like the secretary of state, Ms Condoleeza Rice, General Powell and Andrew Grove in the future.
Ironically, millions of illegal immigrants from Mexico and elsewhere do not ask for affirmative action or preferential treatment. All they want is a chance to work and to build a good life for their families and in the process, to add to US wealth. Those who cannot stand the idea of the American dream want to blow up the USA as Islamic jihadists want do.
ND Batra
From The Statesman
The American dream is some kind of El Dorado, a state of immense wealth and achievement which when attained, enables a person to exclaim, “Ah! It’s good to be an American.”
You can see it in the life of a man like Andy Grove who survived the Nazis and the communists and entered the USA as a refugee. He worked so hard that he had no place to go except up and up until he reached the stratosphere. He built a microchip empire that runs the information superhighway and serves America’s global interests. But he did not do it through the largesse of affirmative action and racial preferences. Nor does Intel, of which he was the CEO, hire people based on quotas, racial preferences, compensatory guilt, or the need for diversity.
Multinationals thrive on competitiveness, not on affirmative action. But do affirmative action preferences create a just society? For about 40 years, US society has been helping African-Americans and other minority groups to cross the race line by creating for them preferences for jobs, contracts and admissions to universities. In the case of higher education, the original intent was to desegregate and diversify the student population by requiring colleges and universities to lower the admission criteria for minority students. The policy might have worked in some cases.
It has been argued that the rise of Colin Powell, who reached the top in the US military with an extraordinary record of achievements and served the Bush administration as the secretary of state in a very difficult era of American diplomacy, would not have been possible without affirmative action. Affirmative action might have opened the door for Mr Powell but it did not catapult him to the top and make him one of the most esteemed Americans living today. In his book, My American Journey, he wrote, “Equal rights and equal opportunity... do not mean preferential treatment. Preferences, no matter how well intended, ultimately breed resentment among the non-preferred.”
Consider the achievements of Hollywood star Bill Cosby, pop culture’s global icon Michael Jackson, and basketball’s once supreme athlete Michael Jordan. They rose to the top on the basis of their guts and talents. Such remarkable achievements would be diminished if they were correlated with racial preferences and quotas. As Powell said: “If affirmative action means programmes that provide equal opportunities, then I am all for it. If it leads to preferential treatment or helps those who no longer need help, I am opposed.” Powell rose to the top on the strength of his character and the power of his brain. But what about those who live in ghettos, inner cities and rural poverty? “If a history of discrimination has made it difficult for certain Americans to meet standards, it is only fair to provide temporary means to help them catch up and compete on equal terms,” the General added. But there are other voices.
Race, as Prof Cornel West of Princeton says, matters a lot in America; prejudice is widely prevalent, and it is the colour of your skin, not character and merit, that determines where you live and work, and how a policeman treats you in the middle of the night when he sees you at a street corner, or when you go to the airport and you are “randomly selected” for special inspection because you look like an Asian or an Arab-Muslim. But these are the imperfections of a great society. Decades of affirmative action policy, which in reality amounted to creating preferential quotas for minorities, have not created a colour-race-gender blind society. No wonder affirmative action has been getting into disfavour as a public policy. In 1998, California voters ended preferential treatment based on race and gender for public employment, education and contracting by approving a ballot initiative.
Berkeley and other top schools of the California Higher Education System no longer admit African-Americans and Hispanics by lowering the admission standards. For a long time, the dominant mood in the country has been: end racial preferences because they create reverse discrimination. But the question still remains: does diversity of race, religion and opinion matter? Diversity is socially desirable because it engenders new ideas that enrich society and encourages tolerance and acceptance of the USA, which is increasingly becoming multicultural and multiracial.
The challenge is to use affirmative action to give some deserving people a head start without creating entitlements, to make possible the rise of people like the secretary of state, Ms Condoleeza Rice, General Powell and Andrew Grove in the future.
Ironically, millions of illegal immigrants from Mexico and elsewhere do not ask for affirmative action or preferential treatment. All they want is a chance to work and to build a good life for their families and in the process, to add to US wealth. Those who cannot stand the idea of the American dream want to blow up the USA as Islamic jihadists want do.
Wednesday, July 5, 2006
SUPREME COURT PLUCKS BUSH'S FEATHERS
From The Statesman
Cyber Age
Clipping the excesses of US power
ND Batra
The US Supreme Court majority ruling that President Bush exceeded his authority by establishing military tribunals for the trial of Al-Qaida detainees held in the US military base at Guantanamo Bay, Cuba, came as a rude shock to the administration that believes and has been acting on the presumption that during war time the President is above the law.
In Hamdan v Rumsfeld, the Court said not only is the American justice system applicable to the detainees but also the Geneva Conventions, of which Article 3 enjoins that detainees be tried by “a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised people.” In a sharp rebuke, Justice Breyer, who concurred with the majority, said: “Congress has not issued the executive ‘a blank check’”. Along with other detainees, Salim Hamdan ~ former driver and bodyguard of Osama bin Laden ~ who was captured in Afghanistan in 2001 and has been held in Guantanamo Bay detention facility, the plaintiff for whose appeal case the Court gave its ruling, now would be tried in more transparent court proceedings than by a secretive military tribunal.
In the wake of the 11 September terrorist attacks, the USA moved fast to “secure its liberties” by adopting draconian measures used only in war times. Some civil libertarians said at that time that President Bush had assumed dictatorial powers by issuing the executive order on 13 November 2001 that suspended the rights of enemy prisoners and non-citizens suspected of terrorism.
Captured Al-Qaida militants were to be tried in special military tribunals, where the normal rules of evidence were not applicable. “Given the danger to the safety of the USA and the nature of international terrorism,” so went the order, “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts.” Trials were not open to the public or the media and could be conducted in any jurisdiction where the USA exercised control. The convicted person could be sentenced to life imprisonment or death, with no provision for appeal to a higher court.
It seemed ironic how Islamic terrorism had driven the USA closer to authoritarian regimes’ practice of speedy and summary execution of “justice”. The whole purpose of the executive order was to try captured Al-Qaida terrorists in a manner that would prevent them from taking advantages of the slowness of the American justice system. The dominant sentiment in the administration has been that the terrorists should not be allowed to enjoy the benefits of the system they so flagrantly abused. Vice-President Dick Cheney said at that time: “The basic proposition here is that somebody who comes into the USA illegally, who conducts a terrorist operation killing thousands innocent Americans… does not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.”
Last Thursday, the Supreme Court rejected the argument and concluded that military commissions violated both US military justice system and international conventions. The prolonged detention of terrorists at Guantanamo Bay detention facility and the inhuman treatment meted out to them gave Al-Qaida a propaganda platform that has kept the Arab-Muslim world simmering with anger and disdain for the USA.
The administration argued this was not the first time that the USA reverted to this extraordinary method of dispensing justice. And that Franklin D Roosevelt too had done so. His military commission sentenced to death German marines who had sneaked in submarines to America’s shores to sabotage US military facilities in 1942; and again in 1946 when another commission sentenced to death a Japanese general for torture, rape and killings of citizens in the Philippines.
The Supreme Court upheld both the judgments. Abraham Lincoln too had allowed trials by military commissions during the Civil War. But those were different times. There is plenty of barbaric behaviour in every civilised society, but fortunately in the USA such bouts of collective insanity, for example, the internment of Japanese-Americans during WWII, do not last for long. Until 11 September 2001 the American people enjoyed more civil liberties than any other people in the world. There was no distinction between citizens and non-citizens before terrorists hit the American soil. The threshold of judicial proof, when a person suspected of terrorism is tried in a military tribunal, is lowered from “beyond a reasonable doubt” to merely “preponderance of evidence” that is required in civil disputes. Unanimous jury verdict required in criminal cases is replaced by a majority verdict by a panel of judges. In a trial by a military tribunal any kind of evidence, even if it does not meet the standards of the rules of evidence, could be used against the suspect under trial.
The right of the defendant to have access to sensitive intelligence in the possession of the prosecution, which is normally respected in trials, may be denied in a trial by a military tribunal. In short, the constitutional protections are suspended in the case of enemy prisoners suspected of terrorism under trial by a military tribunal. The Supreme Court did not question the detention of enemy prisoners. Nor did it order the release of 450 enemy prisoners being held at Guantanamo. But by asking the President to go to Congress to seek a legislative solution so that detainees are given the right to defend themselves according to the law of war and international conventions, it re-established the tripartite balance of power, which had been tilted in favour of the executive after 9/11.
As Justice Kennedy said in his concurring opinion: “Concentration of power puts personal liberty in peril of arbitrary action of officials, an incursion the Constitution’s three-part system is designed to avoid.” In one bold stroke, the US Supreme Court has dismantled the American imperial presidency and reaffirmed the rule of law, thus making the world a safer place from the excesses of American power.
Cyber Age
Clipping the excesses of US power
ND Batra
The US Supreme Court majority ruling that President Bush exceeded his authority by establishing military tribunals for the trial of Al-Qaida detainees held in the US military base at Guantanamo Bay, Cuba, came as a rude shock to the administration that believes and has been acting on the presumption that during war time the President is above the law.
In Hamdan v Rumsfeld, the Court said not only is the American justice system applicable to the detainees but also the Geneva Conventions, of which Article 3 enjoins that detainees be tried by “a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised people.” In a sharp rebuke, Justice Breyer, who concurred with the majority, said: “Congress has not issued the executive ‘a blank check’”. Along with other detainees, Salim Hamdan ~ former driver and bodyguard of Osama bin Laden ~ who was captured in Afghanistan in 2001 and has been held in Guantanamo Bay detention facility, the plaintiff for whose appeal case the Court gave its ruling, now would be tried in more transparent court proceedings than by a secretive military tribunal.
In the wake of the 11 September terrorist attacks, the USA moved fast to “secure its liberties” by adopting draconian measures used only in war times. Some civil libertarians said at that time that President Bush had assumed dictatorial powers by issuing the executive order on 13 November 2001 that suspended the rights of enemy prisoners and non-citizens suspected of terrorism.
Captured Al-Qaida militants were to be tried in special military tribunals, where the normal rules of evidence were not applicable. “Given the danger to the safety of the USA and the nature of international terrorism,” so went the order, “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts.” Trials were not open to the public or the media and could be conducted in any jurisdiction where the USA exercised control. The convicted person could be sentenced to life imprisonment or death, with no provision for appeal to a higher court.
It seemed ironic how Islamic terrorism had driven the USA closer to authoritarian regimes’ practice of speedy and summary execution of “justice”. The whole purpose of the executive order was to try captured Al-Qaida terrorists in a manner that would prevent them from taking advantages of the slowness of the American justice system. The dominant sentiment in the administration has been that the terrorists should not be allowed to enjoy the benefits of the system they so flagrantly abused. Vice-President Dick Cheney said at that time: “The basic proposition here is that somebody who comes into the USA illegally, who conducts a terrorist operation killing thousands innocent Americans… does not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.”
Last Thursday, the Supreme Court rejected the argument and concluded that military commissions violated both US military justice system and international conventions. The prolonged detention of terrorists at Guantanamo Bay detention facility and the inhuman treatment meted out to them gave Al-Qaida a propaganda platform that has kept the Arab-Muslim world simmering with anger and disdain for the USA.
The administration argued this was not the first time that the USA reverted to this extraordinary method of dispensing justice. And that Franklin D Roosevelt too had done so. His military commission sentenced to death German marines who had sneaked in submarines to America’s shores to sabotage US military facilities in 1942; and again in 1946 when another commission sentenced to death a Japanese general for torture, rape and killings of citizens in the Philippines.
The Supreme Court upheld both the judgments. Abraham Lincoln too had allowed trials by military commissions during the Civil War. But those were different times. There is plenty of barbaric behaviour in every civilised society, but fortunately in the USA such bouts of collective insanity, for example, the internment of Japanese-Americans during WWII, do not last for long. Until 11 September 2001 the American people enjoyed more civil liberties than any other people in the world. There was no distinction between citizens and non-citizens before terrorists hit the American soil. The threshold of judicial proof, when a person suspected of terrorism is tried in a military tribunal, is lowered from “beyond a reasonable doubt” to merely “preponderance of evidence” that is required in civil disputes. Unanimous jury verdict required in criminal cases is replaced by a majority verdict by a panel of judges. In a trial by a military tribunal any kind of evidence, even if it does not meet the standards of the rules of evidence, could be used against the suspect under trial.
The right of the defendant to have access to sensitive intelligence in the possession of the prosecution, which is normally respected in trials, may be denied in a trial by a military tribunal. In short, the constitutional protections are suspended in the case of enemy prisoners suspected of terrorism under trial by a military tribunal. The Supreme Court did not question the detention of enemy prisoners. Nor did it order the release of 450 enemy prisoners being held at Guantanamo. But by asking the President to go to Congress to seek a legislative solution so that detainees are given the right to defend themselves according to the law of war and international conventions, it re-established the tripartite balance of power, which had been tilted in favour of the executive after 9/11.
As Justice Kennedy said in his concurring opinion: “Concentration of power puts personal liberty in peril of arbitrary action of officials, an incursion the Constitution’s three-part system is designed to avoid.” In one bold stroke, the US Supreme Court has dismantled the American imperial presidency and reaffirmed the rule of law, thus making the world a safer place from the excesses of American power.
Sunday, July 2, 2006
QUESTION OF THE DAY
Has Guantanamo affected American civil liberties?
There is plenty of barbaric behavior in every civilized society, but fortunately in the United States such bouts of collective insanity, for example, the internment of Japanese-Americans during WWII, do not last for long. Until 11 September 2001 the American people enjoyed more civil liberties than any other people in the world. There was no distinction between citizens and non-citizens before terrorists hit the American soil.
There is plenty of barbaric behavior in every civilized society, but fortunately in the United States such bouts of collective insanity, for example, the internment of Japanese-Americans during WWII, do not last for long. Until 11 September 2001 the American people enjoyed more civil liberties than any other people in the world. There was no distinction between citizens and non-citizens before terrorists hit the American soil.
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