While I was watching a recent video on the New York Times website about an inmate at the Pentagon’s and CIA’s torture and prison center at Guantanamo Bay, I was struck by the fascinating artistic talent displayed by a prisoner named Moath al-Alwi. The article in which the video was included is entitled “He Is Imprisoned at Guantánamo. Making Art Is His Escape.” If you haven’t seen it, I highly recommend it. It’s only about 6 minutes long. It’s incredible what this man has accomplished artistically while imprisoned at Gitmo.
But I was even more struck by what the heading stated just below the title of the article.
It states: “Moath al-Alwi has never been charged with a crime, but has spent over 19 years at the U.S. military detention camp in Cuba.”
That is even more incredible than al-Alwi’s fascinating artistic talent. How in the world is it possible that a person can be held prisoner by U.S. officials for 19 years without any charges or a trial?
After all, the Sixth Amendment to the U.S. Constitution is clear and unequivocal:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation.”
At the risk of belaboring the obvious, 19 years is not a “speedy trial.” Instead, it’s about the clearest violation of the speedy trial provision that one could ever find.
How have the Pentagon and the CIA gotten away with this? Isn’t it the job of the U.S. Supreme Court and the lower federal courts to enforce the Constitution against the executive and legislative branches?
What if the DEA wanted to hold a drug suspect in jail for 19 years without a trial? I don’t think anyone disputes the fact that the federal courts would never permit that to happen. They would enforce the Sixth Amendment and order the DEA and the Justice Department to try the person or release him. They would never permit the DEA to hold anyone indefinitely without criminal charges or a trial.
So, why not here in the case of Moath al-Alwi? Nineteen years in jail. No charges. No trial. That is shocking. Is this the United States or North Korea?
The answer lies in an uncomfortable fact that all too many Americans are loathe to acknowledge. That fact is that ultimately it is the Pentagon, the CIA, and the NSA that are charge of the federal government.
This isn’t just my personal conviction. It is also the conviction of Michael J. Glennon, professor of International law at The Fletcher School of Law and Diplomacy at Tufts University. From 1977-1980, he served as counsel to the Senate Foreign Relations Committee. You can read a more detailed biography of Glennon at his Tufts University website.
Glennon is the author of a book that I have highly recommended in previous articles and video presentations: National Security and Double Government. Glennon’s thesis is a simple one: the military-intelligence establishment is ultimately in charge in the U.S. federal governmental structure. Not the president, not the Congress, and not the Supreme Court. Instead, the Pentagon, the CIA, and the NSA — the three principal components of the national-security part of the government—are ultimately in charge. They simply permit the other three parts of the federal government to maintain the veneer of being in charge.
What better proof of Glennon’s thesis than the case of Moath al-Alwi? Here is a case in which the Bill of Rights has been clearly violated. Everyone would acknowledge that 19 years without charges and without a trial violates the Sixth Amendment. Everyone also would acknowledge that the Supreme Court would not hesitate to enforce that provision against the DEA in a similar circumstance.
But not so against the Pentagon and the CIA, the two sections of the U.S. national-security establishment that wield the overwhelming force within the federal governmental structure, including the omnipotent power of assassination.
What would happen if the Supreme Court were to order Moath al-Alwi’s release based on the Pentagon’s and CIA’s grave violation of the Sixth Amendment? How would it enforce its order? It knows that as a practical matter, a team of U.S. Marshalls would be no match for the 82nd Airborne Division and a team of well-trained CIA assassins. Therefore, it knows that by issuing such an order, it would only be exposing its own impotence and openly confirming Glennon’s point.
But Glennon’s point about military-intelligence supremacy is already confirmed day after day by the forever detention of Moath al-Alwi. Unfortunately, given their obsession with Russia, China, Cuba, and North Korea, where indefinite detention is also established policy, this is something that progressives and conservatives would rather just not think about.
