Justice for all

I was glad to read this great article today about America’s little known immigrant detention system, and simultaneously was shocked at the statistics.

According to an official Immigration and Customs Enforcement (ICE) database, almost 19,000 immigrants out of a total 32,000 who are currently detained within the U.S. “had no criminal conviction, not even for illegal entry or low-level crimes like trespassing.” More than 400 of those with no criminal record had been imprisoned for at least a year; a dozen had been held for at least three years, while an immigrant from China had been behind bars for over five years.

The U.S. Supreme Court had ruled in 2001 that immigrants had to be either deported or released within 6 months of having their case decided. But this deadline is often ignored. And moreover, since 2003 especially as a reaction to the war on terror, Congress doubled the funds used to detaining immigrants.

But what is perhaps most unsettling is that a large number of these prisoners are not illegal immigrants. In fact, many are asylum seekers who had come to the U.S. to escape persecution in their home country, or even longtime residents who are well on their way to becoming permanent residents. One detainee was an honors student who spent almost two years in prison just because her parents’ asylum claim had been denied years before. She had done absolutely nothing wrong, but the system failed to recognize her parents asylum claim and she ended up being punished unnecessarily for years.

Many other detainees are immigrants who cannot be deported because their home countries won’t accept them, or people who have been caught in the complex legal system without a lawyer to fight for their release or provide them with advice.

Apparently the ICE believes that detaining immigrants helps ensure that they attend court hearings and leave the country when they are ordered to do so. The ICE apparently also uses detention as a tactic to force the immigrants into compliance; after people have been detained for months, they have little motivation and energy to continue fighting the charges against them. Detention is used to pressure the detainees and force them to give in quickly. But detaining immigrants indefinitely without even granting them access to a lawyer or to a fair trial is a high price to pay for ensuring they attend court hearings. It is a violation of their basic constitutional rights and civil liberties, and officials should attempt to avoid such detention at all costs rather than use it as a “terror tactic” to implement their policies. This shows just how much America’s criminal justice and immigration systems are in need of critical reform.

It’s also a reminder that although there are high profile situations taking place constantly in human rights law, most recently with the ICC’s arrest warrant for Al-Bashir as well as the debates surrounding Guantanamo Bay, we must not forget that people are being detained and mistreated right here in the United States. It is a reminder to remember the human rights abuses going on daily behind the scenes, right in our backyards - and to not forget them in the face of the more publicized issues we hear about everyday in the news.

Breakthrough is a great organization working to raise awareness of “homeland guantanamos” - the harsh immigrant detention system within the U.S. Click here to check out their campaign.

We need more - we need the truth. We need to look back at the Bush Administration and investigate what went wrong with America’s rule of law during our “war on terror”: torture, illegal wiretapping, extraordinary rendition, and other human rights violations. Why did this happen? Who let it happen? And how can we ensure it never happens again?

We desperately need to establish a Truth Commission to investigate these abuses, and America agrees. After all, 62% of Americans agree that the government should undertake a criminal investigation or set up an independent panel to investigate these anti-terror measures, according to a Gallup poll.

But President Obama said it is more important to move forward, rather than to look back. Vermont Senator Patrick Leahy has proposed such a commission, but President Obama didn’t seem to be too keen on the idea. Yet, President Obama really should consider an informal commission - if not a formal investigation. Personally, I believe that criminal prosecutions are necessary. Necessary for accountability and deterrence. Only by conducting formal investigations will America come to terms with the gravity of what has passed. And only this way can we ensure that history doesn’t repeat itself.

Moreover, if we don’t conduct investigations into the allegations of waterboarding and other torture of Guantanamo Bay detainees, foreign courts (and even the ICC, though that likely won’t happen anytime soon) will have the right to prosecute U.S. officials under “universal jurisdiction.” It’s only right that we fulfill our responsibilities.

As a legal matter, we are compelled to investigate by the Convention Against Torture, a binding treaty, that requires its signatories to investigate and refer for possible prosecution credible evidence of torture under their jurisdiction. — David Cole

Truth and Reconciliation Commissions have been set up around the world - in Rwanda after the genocide, in Argentina, in Chile, in South Africa. There is a precedent for their success. Truth Commissions in some countries led to eventual criminal prosecutions, as they uncovered valid evidence through the process. I’m not saying the crimes of the “war on terror” are in any way comparable to genocide, but I am saying we have a responsibility to at least look into it.

We lock up people for low-level drug offenses through harsh mandatory minimum prison terms, rather than giving them the support services they need. New York spends hundreds of millions of dollars each year imprisoning people convicted of drug possession, but we can’t investigate into something as serious as allegations of torture? It seems a little ironic to me that drug possession lands you in jail for years, but something like approving torture of indefinitely detained prisoners doesn’t even require an investigation.

And sure, people argue that many of those involved simply followed the legal advice of the Justice Department which stated that waterboarding was not torture. But don’t people have responsibilities for their actions regardless? These officials should have had the ability to judge on their own whether what they were doing is wrong. It’s that plain and simple. Following orders blindly can be wrong, as we see from the Holocaust. Again, I’m not comparing these two situations at all - just pointing out similarities. People need to be held responsible for their actions, regardless of whether it was their idea or not in the first place.

Michael Ratner sums this up well:

This is why President Obama is wrong when he argues that prosecution is looking backward; it is not. Prosecution is a means of preventing torture in the future…..Some claim that to prosecute those who approved torture techniques would criminalize a policy difference. But torture is against the law. The claim that the administration officials who promoted the use of waterboarding and other measures were acting in the national interest does not absolve them; if it did, all torturers the world over would use the same justifications.

And so, we need an investigation because America is a role model for countries around the world. We need to show that we are not just changing our policies, but being truly accountable for our actions. Only then can we become a strong advocate for human rights around the world, and only then can we encourage other governments to end human rights violations without hypocricy at home. And we need to investigate so that those responsible will be brought to justice. Together, we have to say - never again.

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