With politicians wanting to look tough – and the public putting security over freedom – the “war on terror” has become an excuse to erode civil liberties, such as the freedom of association and the right to a fair trial. Yet, in the U.S. and Israel, pushback against repression won modest victories, writes Lawrence Davidson.
By Lawrence Davidson
There have been two news stories in the last couple of days that have raised spirits and hopes both in the Middle East and in the United States. And, it is very good to get positive news in a world of constant struggle against greater forces of injustice and brutality.
Yet, it would be wise to restrain one’s glee. Those forces represent governments (including the one in Washington) and their bureaucracies. In both the U.S. and Israel, these forces have the backing of a majority of citizens.
Thus, those actively fighting for the rights of the Palestinians and the protections of the U.S. Constitution almost certainly have additional decades of effort before a real light appears at the end of a dark and dangerous tunnel. That is why I look at these two news stories in sobering perspective.
1. Victory for the Palestinian hunger strikers.
On May 15, the Palestinian Prisoner Solidarity Network, Addameer, confirmed that the hunger strike being carried on by nearly 2,000 imprisoned Palestinians (some fasting for as long as 77 days) had ended because the Israelis and the Palestinians had come to an agreement brokered by Egyptian mediators. What was agreed upon?
– The prisoners would end the strike and start eating again.
– “There will be an end to the use of long-term isolation of prisoners for ‘security reasons’” and 19 prisoners held in such conditions will be moved out of isolation within 72 hours.
– Family visits, which had been denied for “vague security reasons,” will now be allowed. This will be done within one month.
– A standing committee will be formed to facilitate meetings between prisoners and the Israeli Prison Service to improve daily living conditions.
– “There will be no new administrative detention orders or renewals for the 308 Palestinians currently in administrative detention, unless the secret files, upon which the detention is based, contain ‘very serious’ information.” Administrative detention is the Israeli name for arresting people and holding them indefinitely without charge or trial.
What does all this amount to? It amounts to the suspension of the threat of 2,000 Palestinian prisoners to starve themselves to death (an end which some Israelis would probably applaud) on the basis of a number of promises made by Israeli prison bureaucrats.
The promises may suggest that the Israeli government wants toavoid worsening its already poor international image, or that they feared the death of one or more hunger strikers would spark another intifada. It certainly does not reflect any concern on the part of the Israeli government for the human or civil rights of the Palestinians.
That is why the prisoners had to come close to committing mass suicide to get the “Jewish state” to move on their demands. A grand victory for non-violent protest? Well maybe.
There is this interesting addendum to the Addameer news release: “Addameer has observed that Israel has consistently failed to respect the agreements it executes with Palestinians regarding prisoners’ issues. It will be essential for all supporters … to actively monitor closely the conditions inside Israeli prisons in order to assure that conditions meet compliance with international human rights and humanitarian law.”
Israeli prisons have never met such conditions, and we know this because they have been monitored for a very long time. My guess is that, true to form, the Israelis will initially appear to be fulfilling this agreement but the pace of change will be haphazard. Soon any effort to fulfill the promises will cease. In six months, the prisoners will either have to stop eating again or find another tactic.
2. Judge Strikes Down Indefinite Detention in the U.S.
On May 16, a federal district judge in New York, Katherine B. Forrest, struck down that portion of the National Defense Authorization Act (NDAA) that allows U.S. military authorities to hold alleged terrorists and their supporters, including American citizens, indefinitely. This ability is Washington’s even more severe version of Israel’s administrative detention.
In a suit brought by seven journalists, writers and anti-war activists whose work might bring them into contact with alleged terrorists, the claim was made that the bill’s “vague wording essentially said that anyone thought by the government to be colluding with terror suspects could be arrested and detained by the U.S. military.” Such a situation obviously constitutes violations of the Constitution’s due-process and free-speech rights.
This situation was originally concocted by the administration of George W. Bush. It was on his watch that extra-legal categories (“enemy combatants”) and extra-judicial procedures were created giving over suspected terrorists and their alleged supporters to the U.S. military.
This placed them (whether they happened to be citizens or not) beyond the civil courts and the protections they afford, or at least are supposed to afford. The corollary of this stance was, and still is, an assumption on the part of Congress and the White House that the United States is actually in an on-going state of war with terrorists.
This war will never end (after all, terrorism in various forms has existed throughout history) and the entire world, including the U.S. homeland, is now the battlefield. Under such circumstances, Bush and now Barack Obama have seen fit to suspend the Constitution when it comes to those judged (by them alone) to fall within the category of “terrorists” or “supporter of terrorists.”
It is this dubious legal background that led Judge Forrest to ask the government lawyers defending the NDAA “whether the journalists, who said their work brought them into contact with groups like Hamas or the Taliban, could be indefinitely detained” because the government decided they were giving some sort of amorphous aid and comfort to the enemy.
The lawyers could not guarantee that this would not happen. The judge was left with the distinct impression that “the government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by” the detention clause of the NDAA.
As Naomi Wolf noted in a short essay on the trial before Judge Forrest, “What truly disturbed me in that courtroom was the terrible fragility of all the checks to power that are supposed to be in place to protect us against such assaults on democracy. … The trial and NDAA itself have been so inadequately reported by mainstream outlets that I keep running into senior editors and lawyers who have never heard of it.
“I recently cornered one southern Democrat at an event and asked him why he voted to pass the NDAA. He asked what my objection was. It allows the president to detain Americans without charge or trial, I pointed out. His aides had assured him this was not the case. Have you read the bill? I asked. It’s 1,600 pages he replied.”
Luckily for all of us Judge Forrest did read the bill before passing judgment. She then proceeded to strike down the detention provision of the Act. Yet it would be imprudent for anyone to take long-term solace in this fact. This is only the beginning of a very long struggle, the outcome of which is quite uncertain.
Congress, particularly the Republican-dominated House, has pointedly thumbed its nose at Judge Forrest by including indefinite detention in the 2013 version of NDAA. Clearly, the Congress as presently constituted has no intention of rewriting the detention provisions just found unconstitutional.
Thus, we can expect the government’s lawyers to go back to court to try to overrule Judge Forrest. If necessary they will take the issue to the Supreme Court. That is largely a George W. Bush court and can be expected to uphold indefinite detention, the Constitution be damned.
The average American has had nothing negative to say about this significant erosion of rights. Like Wolf’s “senior editors and lawyers,” most citizens in the U.S. are unaware that indefinite detention is an important issue that touches their lives. And when and if they become aware, they probably will not object. This is because the average citizen does not exercise his or her rights in any significant sense and is very suspicious of those who do.
It is those who assert opinions and/or behave in a way that runs counter to the majority stance who end up in need of free-speech and due-process protections. So, if you are one of those people, you most likely will not be able to count on your neighbor’s support if the police come knocking.
On the upside, however, the two news stories analyzed above demonstrate that battles against even the most entrenched and powerful of foes can be won. To win wars, however, is another thing altogether. Yet that too may be possible.
Still, it should sober us all to realize that it will take staying power – the sort of staying power that has already kept many struggles going for decades if not generations. Indeed, if we are to take history seriously, the sort of struggles described above may be never-ending if looked at in worldwide terms.
So, while both the persistence of the hunger strikers and the insight of a brave New York judge are to be applauded and be kept as cherished precedents, let’s heed the pledge of British Labour politician, Barbara Castle: “I will fight for what I believe in until I drop dead. And that’s what keeps me alive.”
Lawrence Davidson is a history professor at West Chester University in Pennsylvania. He is the author of Foreign Policy Inc.: Privatizing America’s National Interest; America’s Palestine: Popular and Offical Perceptions from Balfour to Israeli Statehood; and Islamic Fundamentalism.