Convicted on one of 284 counts, Ghailani was sentenced to life without parole. During his sentencing, Judge Kaplan suddenly took off the gloves, to use a phrase much loved by those in favor of "enhanced interrogation techniques" in the Bush years. Specifically, he went out of his way to undercut any moral (as opposed to strictly legal) objections to the torture of detainees in American custody. He said:
I have not previously expressed any opinion as to whether Mr. Ghailani's treatment by the United States was illegal and I do not do so now. That question is not before me. What I will say is this: Whatever Mr. Ghailani suffered at the hands of the CIA and others in our government, and however unpleasant the conditions of his confinement, the impact on him pales in comparison to the suffering and the horror that he and his confederates caused. For every hour of pain and discomfort that he suffered, he caused a thousand-fold more pain and suffering to entirely innocent people.
From a well-respected member of the federal bench, that statement represented an under-reported benchmark in American legal history. In a few carefully chosen words, Kaplan moved the arguments in favor of torture out of the context of gaining actionable intelligence (however mythical that might be in torture cases) and into the context of revenge. In so doing, he displayed a startling willingness to throw away enduring normative restraints on the exercise of power over those incapable of resisting, restraints that had previously seemed inseparable from American culture and the American legal system.
No longer on the bench, Mukasey had explicitly justified the torture of 9/11 mastermind Khalid Sheikh Mohammed on the grounds that the pain his interrogators inflicted disgorged invaluable information for stopping future attacks on Americans. Judge Kaplan took Mukasey several steps further, by implying from the bench that no one could morally object to American interrogators torturing a terror suspect, not because he offered actionable intelligence, but simply because of the terrible crimes he was, at the time, alleged to have committed.
It has been a persistent worry of civil libertarians that violations of the rights of non-citizens would eventually contaminate the ways citizens are treated, too; that a process of "enemy creep" would, in the end, result in the Guantanamo-ization of American terrorism suspects.
When rights were first denied to captives at Guantanamo Bay, the Bush administration argued that a prison in Cuba should not be considered subject to the constitutional principles that apply to Americans everywhere or to anyone within the territorial boundaries of the US. It is, however, quite another matter, as in the King hearings, to single out Muslims or others in our midst as potential terrorists and then to argue that when arrested—even if they are US citizens or captured or tried on US soil—they should be denied the protections of US law.
At the moment, the most alarming example of "enemy creep" can be found in the case of Bradley Manning, the US Army private who allegedly downloaded hundreds of thousands of classified documents from Army computer systems and turned them over to WikiLeaks. He is now being held on 24 charges in 23-hour-a-day solitary confinement in a brig at Quantico Marine Base in Virginia, while awaiting a court martial slated to begin later this spring.
There, among other punitive forms of treatment, he has reportedly been denied his clothes at night (though he is now apparently allowed to sleep in a coarse, tear-proof gown), supposedly as a form of self-protection. In captivity, nakedness, as the infamous abuses at Iraq's Abu Ghraib prison demonstrated, is above all a form of humiliation, and often the first step towards physical and sexual abuse, including torture. Manning, neither Muslim nor accused of terrorism, is nonetheless clearly considered by his captors an enemy of the nation, a traitor. As a result, he is being kept under conditions which should make Americans take note of the blurring of, and crossing of, previously sacrosanct lines and the dismantling of long-established rights when it comes to defining and punishing "the enemy." Though no jihadi terrorist, Manning, too, is being punished before being tried for the crime of threatening national security.
In a recent press conference, President Obama professed to find nothing legally or morally objectionable about such punishment without trial. The Pentagon, he said, had assured him that "the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards," adding that "[s]ome of this has to do with Private Manning's safety." (State Department spokesperson P.J. Crowley, who had publicly criticized the Pentagon's handling of Manning, which led to that question about him at the press conference, was soon after forced out of his job.) Perhaps we are to believe that, according to the standard put forward by Judge Kaplan, however abusive the conditions of Manning's confinement, the impact on him pales in comparison to the suffering and the horror he is alleged to have caused.
Thanks to Mukasey, Kaplan, King, those overseeing the treatment of Manning, and others, the embrace of cruel standards when it comes to alleged enemies of the state is gaining traction. These officials and former officials seem to be part of a process, remarkably uncommented upon, that is turning previously unthinkable rhetoric into normal discourse and intolerance into a rationale for challenging the rights of anyone accused of violating the country's security.
Perhaps we should consider the King hearings and the ever more extreme statements of a growing cadre of well-respected figures as an omen. At an increasingly rapid pace, the boundaries of acceptable civil discourse are being crossed and rights in America are being tossed away—at least when it comes to national security issues. Today, even with a constitutional lawyer as president, fear continues to cow those who have the power to make a difference.
Karen Greenberg is the executive director of the New York University Center on Law and Security, the author of The Least Worst Place: Guantanamo's First One Hundred Days, and editor of The Torture Debate in America. Brian Chelcun, CLS researcher, contributed to the research for this piece. To listen to Timothy MacBain's latest TomCast audio interview in which Greenberg discusses the new sense of empowerment among torture supporters in America, click here, or download it to your iPod here.