I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, October 30, 2006

What the Bilal Hussein detention reveals about the Bush administration

Bilal Hussein is the Pulitzer Prize-winning Associated Press photographer who was detained by the U.S. military in Iraq back in April -- almost six months ago. Along with 14,000 other people around the world (at least), he continues to remain in U.S. custody without being charged with any crime. The U.S. military has vaguely claimed that he has close ties with Iraqi insurgents but refuses to specify what it is specifically that he is alleged to have done, refuses to provide any hearing or process of any kind for him to learn of the charges or contest them, and refuses to respond to AP's requests for information about why he is being held.

Hussein's detention in April was preceded by months of vicious complaints from Bush followers that his photojournalism was anti-American and suggestive of support for the insurgents. Before there were even any news reports anywhere about Hussein's detention, Michelle Malkin learned of Hussein's detention -- she claims "from an anonymous military source in Iraq" -- and blogged about it. She claimed that "Hussein was captured earlier today by American forces in a building in Ramadi, Iraq, with a cache of weapons." It will surprise nobody that, as was conclusively revealed once AP was able to talk publicly about Hussein's detention, many of the "factual claims" on which these accusations against Hussein were based were just outright false.

The power to detain people indefinitely -- meaning forever -- without so much as charging them with any crime is, of course, the very power that Congress just weeks ago vested in the President when it enacted the so-called Military Commissions Act of 2006. While it is customary for soldiers captured on a battlefield to be held as prisoners of war until the end of hostilities, Hussein and many (if not most) of those who have been detained around the world were not captured on any battlefield at all, nor were they caught in the act of waging war against the U.S. Instead, they have simply been arrested in apartments, homes, and off the street and then thrown into prisons with no charges or process of any kind.

What is notable and encouraging in the Hussein case is that AP has become increasingly aggressive about defending press freedoms and objecting to the U.S. Government's lawless detention of one of its journalists. After first attempting unsuccessfully to negotiate with the U.S. military to obtain either formal charges against Hussein or his release, AP, with increasing passion, has been publicly complaining about the treatment of its employee. Within the last couple of days, they escalated their campaign:

The U.S. military's indefinite detention of an Associated Press photographer in Iraq without charges, is an outrage and should be seen as such by the journalistic community, AP editors said Friday.

We are angry, and we hope you are, too," AP International Editor John Daniszewski told a gathering of the Associated Press Managing Editors.

Given the irreplaceable function of journalists to expose and convey truth, especially in war zones, such lawless detentions pose extreme and obvious dangers which require safeguards. But the Bush administration has simply arrogated unto itself the power to detain whichever journalists they want, while accounting to nobody. In the Hussein case, there are, at the very least, compelling grounds to believe that the Hussein detention was motivated by his legitimate work as a journalist:

Daniszewski said that when the news cooperative pressed for further details, the best it could learn was that Hussein was allegedly involved in the kidnapping of two journalists by insurgents in Ramadi.

However, Daniszewski said the two journalists were asked by AP about the incident and that they recalled Hussein as a "hero," who helped evacuate them from harm's way.

Lyon said he reviewed Hussein's images and interviewed his colleagues and found nothing to suggest he was doing more than his job in a war zone. The vast majority of images depicts the realities of war, Lyon said, and "may be an inconvenient truth, but a truth nonetheless."

David Zeeck, president of ASNE and executive editor of The News Tribune, of Tacoma, Wash., called Hussein's detention without charges "contrary to American values."

"This is how Saddam Husseindealt with reporters; he would hold them incommunicado," Zeeck said.

This overt assault on press freedoms internationally is consistent with the administration's incremental attacks on the American media domestically -- attacks which have been met with virtual silence from most of the national media. In that regard, perhaps this exchange is the most revealing part of the latest AP article:

Rosemary Goudreau, editorial page editor of The Tampa Tribune, asked AP Executive Editor Kathleen Carroll what papers like hers could do.

"You run an editorial page, as I recall," Carroll said.

Just as astonishing as the Bush administration's attack on the work of journalists is the almost total acquiescence of the American media to those attacks -- so much so that AP is forced to explicitly beg their fellow journalists to editorialize against the administration's lawless and dangerous detention of one of its journalists. If -- as has been the case to an astonishing extent -- American journalists are unwilling to defend their press freedoms, who is going to?

At a time when the Bush administration claims that the centerpiece of its foreign policy is to spread democratic values around the world, the U.S. is rapidly gaining a reputation among international journalists as a country that is overtly hostile to press freedoms and which poses real danges for journalists:

The press is freer in Mozambique than it is in the United States, according to the latest Worldwide Press Freedom Index, published by the Paris-based press freedom body, Reporters sans Frontieres (RSF - Reporters without Borders).

The RSF index gives each country a score, based on the degree of freedom for journalists and media organisations. . . .

But the United States has been falling steadily. In the first year the index was published it was in 17th position. Last year the US was in 44th position, and this year it is ranked as number 53 alongside Botswana, Croatia and Tonga.

RSF explains that this decline arises from the deterioration in relations between the Bush administration and the media "after the President used the pretext of "national security" to regard as suspicious any journalist who questioned his "war on terrorism".

RSF also points out that US federal courts refuse to recognise journalists' cherished right not to reveal their sources. This includes "even threatens journalists whose investigations have no connection at all with terrorism."

RSF notes, in particular, the cases of freelance journalist Josh Wolf, imprisoned by the US authorities when he refused to hand over his video archive; of Sudanese cameraman Sami al-Haj held without trial at the US military base of Guantanamo since June 2002; and of an Associated Press photographer, Bilal Hussein, held by the US in Iraq since April this year.

Compare the first RSF press freedom rankings from 2002 (when the U.S. was near the top of the list) to the latest rankings (in which the U.S. falls below countries such as Ghana, El Salvador, Namibia, Chile, Israel, and virtually every European country). This list cannot be dismissed away by Bush followers as the work of some sort of left-wing, tyranny-blind international group, since the bottom of the list is filled with exactly the countries one would expect to find there, such as North Korea, Cuba, Iran, Saudi Arabia, Pakistan, Russia, and Iraq. In Iraq alone, anti-press-freedom incidents like Hussein's detention, perpetrated by the U.S. Government, are becoming commonplace:

Not all the threats faced by Iraqi journalists come from the insurgents.

In September, Kalshan al-Bayati, whose reporting had been critical of security forces in Tikrit, was arrested twice by the Iraqi army for alleged terrorist links, and remains in custody. . . .

According to CPJ, at least eight journalists have been detained for weeks or months by Iraqi and coalition forces. They include employees of CBS News, Reuters, the AP and Agence France-Presse among others. At least four of the detentions have exceeded 100 days, Campagna said.

The Bush administration and its followers have long equated the reporting of facts which reflect negatively on the administration with subversiveness and even treason-- a twisted, authoritarian mindset illustrated most recently by Lynne Cheney's accusation to an absurdly surprised Wolf Blitzer that CNN wants the terrorists to win because they broadcast video footage of insurgents shooting at American troops. That premise leads inexorably to the conclusion that journalists who report facts that undermine the administration's claims are not just unfriendly but criminal, that they are not just helping the Enemy but are the Enemy itself.

It is always worth underscoring the fact that these observations are compelled by what we know. There is a whole universe of Bush administration actions that we don't know. As Ron Suskind pointed out in an interview published this weekend by Der Spiegel, when asked: "You quote former CIA director George Tenet in your book as saying after Sept. 11: 'There is nothing we won't do, nothing we won't try.' Are there any other dirty stories?"

Logically, I would have to say yes. You're dealing with an oddity here, a secret war. Wars tend to be very public things, they are visible. There are correspondents traveling with the troops and you get daily dispatches. This is a new conflict, fought largely in secret. The public is only informed a kind of "need to know basis." Based on that, I would assume that there remains something of an undiscovered country of activity in terms of what we have done over the past five years.

This is precisely why I believe that commencing real investigations of the administration's conduct over the last five years is so imperative, perhaps uniquely so. What we know has been done is damaging and extreme enough, but it is almost certain that what we don't know is even worse (which, as Suskind suggests, is precisely why we don't know it).

The detention of Bilal Hussein -- the lawlessness of it, the naked attack on a free press and dissent of every kind, the insistence on blind faith in the administration's claims -- illustrates not only how we are now perceived around the world, but more importantly, what we have become as a country. With a true accounting and reckoning, that damage can be contained and then reversed, but it is clear that the time for that is rapidly running out.

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