In the Penal Colony is a nightmare. It reflects Kafka's fear of the corruption of justice in a crucible of terror. It is the nightmare he saw drawing near on the horizon of Central Europe's history. But it has not passed.
Let us not make the mistake of viewing the Penal Colony as a historic or literary relic. The Penal Colony exists today. It has many other names. Guantanamo, Abu Ghraib, Baghram and the Salt Pit, for instance.
As the chair said, the American Supreme Court showed the majesty of the law in ruling that the detainees in this conflict had the protections provided by Common Article 3 of the Geneva Conventions. But unfortunately, the matter has not rested with that determination.
This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights." It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees. It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws. The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic. It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."
But beyond this, every day's newspaper brings us more grotesque turns. Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys. And in one case, that of Majid Khan, the Department specifically argued that if he got a lawyer, the lawyer must be forbidden from asking any questions about how Majid Khan was treated in the hands of the CIA. His treatment, it is said, is classified as TOP SECRET//SCI Level. Therefore, his lawyer is not entitled to know anything about it. Moreover, it would be better if he never had a lawyer. I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations. The suspicion is near that the TOP SECRET label was affixed in this case to obscure criminal conduct. The use of security classifications in such a way is the hallmark of a tyrannical society. What attitude towards justice does this reveal?
Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures. They also recently told a magazine seeking information about his case, that all their concerns about Bilal Hussein were classified information and could not, therefore, be shared with anyone. To this day, they maintain they have the right to continue to hold Bilal Hussein indefinitely, on the criminal offense of being a journalist. What attitude towards justice does this reveal?
