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Our Nation Unhinged

Our Nation Unhinged: The Human Consequences of the War on Terror

Peter Jan Honigsberg
FOREWORD BY ERWIN CHEMERINSKY
Copyright Date: 2009
Edition: 1
Pages: 334
https://www.jstor.org/stable/10.1525/j.ctt1pnvrj
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  • Book Info
    Our Nation Unhinged
    Book Description:

    Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, "Kill me!" Hunger strikers at Guantánamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration's response to the attacks of September 11, 2001—and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed.

    eISBN: 978-0-520-94312-4
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-x)
  2. Table of Contents
    (pp. xi-xii)
  3. The Cuban Iguana and American Jurisprudence
    (pp. xiii-xiv)
  4. Foreword
    (pp. xv-xx)
    Erwin Chemerinsky

    As I write this in August 2008, some men have been kept prisoners in Guantanamo Bay, Cuba, for six and a half years. They are essentially held in solitary confinement. They have been prisoners longer than World War II, longer than World War I, longer than the Civil War. Only one has received a trial.

    A particularly shameful aspect of a truly shameful episode of American history is that no one except the lawyers representing these men—not the United States, not its courts—seems to feel the slightest urgency in determining whether these men should continue to be held...

  5. Opening
    (pp. 1-12)

    Jose Padilla’s lawyers have in their possession a photo of him wearing goggles and headphones. The thick, blackened goggles wrap around Padilla’s head, covering much of his forehead. They are designed not only to obstruct his vision but also to block all light, natural and artificial. According to one of his lawyers, they resemble paint goggles.¹ The goggles sit very low on his nose.

    Conical headphones lock out all sounds. There seems to be a strap hanging loosely around his chin. He wears a short-sleeved orange jumpsuit, the kind that prisoners wear. His is open at the collar, exposing a...

  6. PART ONE MANIPULATING THE LAW
    (pp. 15-38)

    IN THREE MAJOR AREAS DESCRIBED IN THIS PART, the Bush administration manipulated the Constitution, federal statutes, and international laws and treaties. In some instances, it even appears that the administration made up the law. However, whether it manipulated the law or made it up, the result was the same. The administration’s cynical attitude toward the rule of law led to policies that had terrible human consequences.

    After 9/11, for the first time in American history, the government placed two American citizens, Yaser Hamdi and Jose Padilla, and a lawful American resident, Ali al Marri, in isolation, keeping them incommunicado for...

  7. PART TWO LAWLESS DETENTIONS IN AMERICA
    (pp. 39-72)

    TWO AMERICAN CITIZENS, Yaser Hamdi and Jose Padilla, and one American resident, Ali al Marri, were held in the naval brig in Charleston, South Carolina, without charges and without access to lawyers and their families. They were denied their guaranteed rights to due process and the rule of law provided by the Constitution. They were kept in isolation, tortured, and deprived of sensory stimulation.

    Terrorist Timothy McVeigh, who blew up the Oklahoma Federal Building in April 1995, was provided all his due process rights as soon as he was captured. Unlike McVeigh, who was personally responsible for the bomb...

  8. PART THREE LAWLESS DETENTIONS IN GUANTANAMO

    • I GUANTANAMO AND THE ROAD TO THE SUPREME COURT, 2002–2004
      (pp. 75-93)

      The previous part looked at three men—two American citizens, Jose Padilla and Yaser Hamdi, and Ali al Marri, an American resident, who were tortured and held in isolation and incommunicado, without charges, without due process protections, and without access to lawyers—and the more than 1,500 men who were held in preventive detention in American cells. This part looks at the belly of the beast, Guantanamo Bay, where over a period of seven years the United States held more than eight hundred men in detention. The men were frequently kept in isolation, cruelly treated, and even tortured. They were...

    • II INHUMANE TREATMENT OF DETAINEES AT GUANTANAMO
      (pp. 94-112)

      An entire book could be written on the administration’s inhumane treatment of the Guantanamo detainees. This is not that book. However, it is important to provide a snapshot of the kinds of human rights abuses that the detainees have suffered over their years in Guantanamo. The treatment of the detainees falls into two categories: confinement without charges or a hearing, that is, the lack of due process and absence of fundamental fairness; and mental and physical abuse suffered by the detainees while in the detention centers.¹

      The abuse of Mohammed al-Qahtani, a Saudi, is well documented. The administration believed that...

    • III THE ADMINSTRATION UNDER SIEGE, 2004–2006
      (pp. 113-143)

      June 28, 2004, was a day of rejoicing. The historic U.S. Supreme Court decision inRasul v. Bushhad established due process rights for all detainees. This was a human rights victory. The rights and protections embedded in our Constitution and our belief in fundamental fairness had prevailed. The Supreme Court had turned back the executive’s claim to unlimited powers as commander in chief in times of war.

      Or so we all thought. As it turned out, the elation was short-lived. The administration was hardly ready to concede defeat or even to admit that any substantive changes had occurred. As...

    • IV WINDS OF CHANGE, 2006–2008
      (pp. 144-176)

      Justice John Paul Stevens, now at the age of eighty-six, must have smiled at the providence of life. Here he was in his ninth decade and authoring his second historic decision on the rights of Guantanamo detainees. It was June 29, 2006, two years and one day after Stevens had issued hisRasuldecision.

      Writing for a 5–3 majority, Stevens ruled inHamdan v. Rumsfeldthat the Detainee Treatment Act (DTA) Congress had enacted in 2005 at the behest of the administration—which aimed to deny habeas actions filed by the Guantanamo detainees—did not apply to cases that...

  9. PART FOUR FOREIGN PRISONS AND CIA BLACK SITES
    (pp. 177-194)

    Extraordinary renditionis another term for international vigilantism. The term is understood today to refer to kidnapping suspects worldwide and transporting them to other nations to be tortured or killed. The practice originated in 1986, when the Reagan administration began kidnapping terrorist suspects in other countries and transporting them to the United States for trial.¹ The program escalated dramatically in 1995 under President Clinton. The CIA proposed a deal with Egypt in which the CIA would seize suspected Egyptian and other Muslim terrorists—some of them convicted in absentia—around the globe and transport them to other countries, particularly Egypt,...

  10. PART FIVE DETENTIONS IN AMERICA WITH DUE PROCESS
    (pp. 195-222)

    EVEN IN TIMES OF WAR, our nation can and should provide due process rights to alleged terrorists. The criminal defendants described in this part were all alleged to be connected to the War on Terror, the Taliban, al Qaeda, or the 9/11 plot. Yet, unlike Jose Padilla, Yaser Hamdi, and Ali al Marri, who were held incommunicado, deprived of all sensory stimulation, and denied access to lawyers and to fair hearings before neutral decision makers to challenge their detentions, the men described in this part were prosecuted, convicted, and sentenced in the criminal justice system. There were problems in some...

  11. Closing
    (pp. 223-226)

    Carlos Castresana, a native of Spain, has earned an unique place in the annals of international human rights law. In March 1996, he was an anticorruption prosecutor in Spain and a leader in the Union of Progressive Prosecutors. A very smart, soft-spoken, and innovative thinker, Carlos conceived the idea of initiating a complaint in Spain to prosecute Argentine generals for genocide, illegal detentions, and disappearances. Under a principle of international law known as “universal jurisdiction,” any nation can prosecute perpetrators of human rights violations, genocide, crimes against humanity, and war crimes, no matter where the violation occurred.

    The complaint against...

  12. Addendum: Visiting Guantanamo Bay
    (pp. 227-244)

    In May 2007, I visited Guantanamo Bay as a member of the media. I was given a tour along with two other members of the media. The application process, as much a surreal experience as the visit itself, and the three-day tour are described below.

    A fellow law professor, Mark Denbeaux, advised me when I told him I was applying to visit Guantanamo: “After they strap you in, they announce that the next bathroom stop is at Guantanamo. There are no bathrooms on the ten-seater propeller aircraft. And the bumpy flight is over three hours.” The flight from Fort Lauderdale,...

  13. List of Abbreviations
    (pp. 245-246)
  14. Notes
    (pp. 247-294)
  15. Index
    (pp. 295-311)
  16. Back Matter
    (pp. 312-312)