Profit$ of Doom

(May 14, 2005, Good Weekend)

From Aceh to Iraq, a ruthless form of disaster capitalism is reshaping vulnerable societies to its own design, with the so-called democracy builders making millions in the process, writes Naomi Klein.

Last year, in the lull of the northern hemisphere August media doze, the Bush Administration’s doctrine of preventive war took a major leap forward. On August 5, the White House created the Office of the Co-ordinator for Reconstruction and Stabilisation. Headed by the former US ambassador to Ukraine, Carlos Pascual, its mandate is to draw up elaborate “post-conflict” plans for up to 25 countries that are not, as yet, in conflict. According to Pascual, it will also be able to co-ordinate three full-scale reconstruction operations in different countries at the same time, each lasting “five to seven years”.
Fittingly, a government devoted to perpetual pre-emptive deconstruction now has an office of perpetual pre-emptive reconstruction.
Gone are the days of waiting for wars to break out and then drawing up ad hoc plans to pick up the pieces. In close co-operation with the National Intelligence Council, which supplies strategic foreign affairs analyses to the US Government, Pascual’s office keeps “high risk” countries on a watch list and assembles rapid-response teams ready to engage in prewar planning and to “mobilise and deploy quickly” after a conflict has gone down. The teams are made up of private companies, non-government organisations and members of think tanks – some, Pascual told an audience at the Centre for Strategic and International Studies (CSIS) in October, will have “pre-completed” contracts to rebuild countries that are not yet broken. Doing this paperwork in advance could “cut off three to six months in your response time”.
The plans Pascual’s teams have been drawing up in his little-known office in the State Department are about changing “the very social fabric of a nation”, he told CSIS. The office’s mandate is not to rebuild any old states, you see, but to create “democratic and market-oriented” ones. So, for instance, his fast-acting reconstructors might help sell off “state-owned enterprises that created a non-viable economy”. Sometimes rebuilding, he explained, means “tearing apart the old”.
Few ideologues can resist the allure of a blank slate – that was colonialism’s seductive promise: discovering wide-open new lands where utopia seemed possible. But colonialism is dead, or so we are told; there are no new places to discover, no terra nullius (there never was), no more blank pages on which, as Mao once said, “the newest and most beautiful words can be written”. There is, however, plenty of destruction – countries smashed to rubble, whether by so-called acts of God or by acts of Bush (on orders from God). And where there is destruction there is reconstruction, a chance to grab hold of “the terrible barrenness” – as a UN official recently described the devastation in Aceh – and fill it with the most perfect, beautiful plans.
“We used to have vulgar colonialism,” says Shalmali Guttal, a Bangalore-based researcher with Focus on the Global South, which studies international finance and globalisation issues. “Now we have sophisticated colonialism, and they call it ‘reconstruction’.”
It certainly seems that ever-larger portions of the globe are under active reconstruction: being rebuilt by a parallel government made up of a familiar cast of for-profit consulting firms, engineering companies, mega-NGOs, government and UN aid agencies and international financial institutions. And from the people living in these reconstruction sites – Iraq to Aceh, Afghanistan to Haiti – a similar chorus of complaints can be heard. The work is far too slow, if it is happening at all. Foreign consultants live high on cost-plus expense accounts and thousand-dollar-a-day ($A1300) salaries, while locals are shut out of much-needed jobs, training and decision-making. Expert “democracy builders” lecture governments on the importance of transparency and “good governance”, yet most contractors and NGOs refuse to open their books to those same governments, let alone give them control over how their aid money is spent.

Three months after the tsunami hit Aceh, The New York Times ran a distressing story reporting that “almost nothing seems to have been done to begin repairs and rebuilding”. The dispatch could easily have come from Iraq, where, as the Los Angeles Times has recently reported, all of the US-owned Bechtel Group’s allegedly rebuilt water plants have started to break down, one more in an endless litany of reconstruction screw-ups. It could also have come from Afghanistan, where President Hamid Karzai recently blasted “corrupt, wasteful, and unaccountable” foreign contractors for “squandering the precious resources that Afghanistan received in aid”. Or from Sri Lanka, where 600,000 people who lost their homes in the tsunami are still languishing in temporary camps. One hundred days after the giant waves hit, Herman Kumara, head of the National Fisheries Solidarity Movement in Negombo, Sri Lanka, sent out a desperate email to colleagues around the world. “The funds received for the benefit of the victims are directed to the benefit of the privileged few, not to the real victims,” he wrote. “Our voices are not heard and not allowed to be voiced.”
But if the reconstruction industry is stunningly inept at rebuilding, that may be because rebuilding is not its primary purpose. According to Guttal, “It’s not reconstruction at all – it’s about reshaping everything.” If anything, the stories of corruption and incompetence serve to mask this deeper scandal: the rise of a predatory form of disaster capitalism that uses the desperation and fear created by catastrophe to engage in radical social and economic engineering. And on this front, the reconstruction industry works so quickly and efficiently that the privatisations and land grabs are usually locked in before the local population knows what hit them. Kumara, in another email, warns that Sri Lanka is now facing “a second tsunami of corporate globalisation and militarisation”, potentially even more devastating than the first. “We see this as a plan of action amidst the tsunami crisis to hand over the sea and the coast to foreign corporations and tourism, with military assistance from the US Marines.”
As US Deputy Defence Secretary, Paul Wolfowitz designed and oversaw a strikingly similar project in Iraq. The fires were still burning in Baghdad when US occupation officials rewrote the investment laws and announced that the country’s state-owned companies would be privatised. Pointing to this track record, some have argued that Wolfowitz is unfit to lead the World Bank; in fact, nothing could have prepared him better for his new job. In Iraq, Wolfowitz was just doing what the World Bank is already doing in virtually every war-torn and disaster-struck country in the world – albeit with fewer bureaucratic niceties and more ideological bravado.
“Post-conflict” countries now receive 20 to 25 per cent of the World Bank’s total lending, up from 16 per cent in 1998 – itself an 800 per cent increase since 1980, according to a study by the public policy research arm of the US Congress. Rapid response to wars and natural disasters has traditionally been the domain of United Nations agencies, which worked with NGOs to provide emergency aid, build temporary housing and the like. But now reconstruction work has been revealed as a tremendously lucrative industry, too important to be left to the do-gooders at the UN. So today it is the World Bank, already devoted to the principle of alleviating poverty through profit-making, that leads the charge.
And there is no doubt that there are profits to be made in the reconstruction business. There are massive engineering and supplies contracts; “democracy building” has exploded into a $2 billion industry. Times have never been better for public-sector consultants, the private firms that advise governments on selling off their assets, often running government services themselves as subcontractors.
But shattered countries are attractive to the World Bank for another reason: they take orders well. After a cataclysmic event, governments will usually do whatever it takes to get aid dollars – even if it means racking up huge debts and agreeing to sweeping policy reforms. And with the local population struggling to find shelter and food, political organising against privatisation can seem like an unimaginable luxury.
Even better from the bank’s perspective, many war-ravaged countries are in states of “limited sovereignty”. They are considered too unstable and unskilled to manage the aid money pouring in, so it is often put in a trust fund managed by the World Bank. This is the case in East Timor, where the bank doles out money to the government as long as it shows it is spending responsibly. Apparently, this means slashing public-sector jobs (Timor’s government is half the size it was under Indonesian occupation) but lavishing aid money on foreign consultants the bank insists the government hire. “In one government department, a single international consultant earns in one month the same as his 20 Timorese colleagues earn together in an entire year,” writes Ben Moxham of Focus on the Global South.
In Afghanistan, where the World Bank also administers the country’s aid through a trust fund, it has already managed to privatise healthcare by refusing to give funds to the Ministry of Health to build hospitals. Instead, it funnels money directly to NGOs, which are running their own private health clinics on three-year contracts. It has also mandated “an increased role for the private sector” in the water system, telecommunications, oil, gas and mining, and directed the government to withdraw from the electricity sector and leave it to “foreign private investors”. These profound transformations of Afghan society were never debated or reported on, because few outside the bank know they took place; the changes were buried deep in a “technical annex” attached to a grant providing emergency aid to Afghanistan’s war-torn infrastructure – two years before the country had an elected government.
It has been much the same story in Haiti, following the ousting of President Jean-Bertrand Aristide. In exchange for a $61 million loan, the bank is requiring “public-private partnership and governance in the education and health sectors”, according to bank documents – that is, private companies running schools and hospitals. Roger Noriega, the US Assistant Secretary of State for Western Hemisphere Affairs, has made it clear that the Bush Administration shares these goals. “We will also encourage the government of Haiti to move forward, at the appropriate time, with restructuring and privatisation of some public sector enterprises,” he told the American Enterprise Institute on April 14 last year.
These are controversial plans in a country with a powerful socialist base, and the bank admits that this is precisely why it is pushing them now, with Haiti under what approaches military rule. “The Transitional Government provide[s] a window of opportunity for implementing economic governance reforms … that may be hard for a future government to undo,” the bank notes in its Economic Governance Reform Operation agreement.
For Haitians, this is a particularly bitter irony. Many blame multilateral institutions, including the World Bank, for deepening the political crisis that led to Aristide’s ousting by withholding hundreds of millions in promised loans. At the time, the Inter-American Development Bank, under pressure from the State Department, claimed Haiti was insufficiently democratic to receive the money, pointing to minor irregularities in a legislative election. But now that Aristide is out, the World Bank is openly celebrating the perks of operating in a democracy-free zone.

The World Bank and the International Monetary Fund have been imposing shock therapy on countries in various states of shock for at least three decades, most notably after Latin America’s military coups and the collapse of the Soviet Union. Yet many observers say that today’s disaster capitalism really hit its stride with Hurricane Mitch.
For a week in October 1998, Mitch parked itself over Central America, swallowing villages whole and killing more than 10,000 people. Already impoverished countries were desperate for reconstruction aid, and it came – but with strings attached. In the two months after Mitch struck, with the country still knee-deep in rubble, corpses and mud, the Honduran congress initiated what the Financial Times called “speed sell-offs after the storm”. It passed laws allowing the privatisation of airports, seaports and highways and fast-tracked plans to privatise the state telephone company, the national electric company and parts of the water sector. It overturned land-reform laws and made it easier for foreigners to buy and sell property. Within the same two months, neighbouring Guatemala announced plans to sell off its phone system, and Nicaragua did likewise, along with its electric company and its petroleum sector. All of the privatisation plans were pushed aggressively by the usual suspects. According to The Wall Street Journal, “the World Bank and International Monetary Fund had thrown their weight behind the [telecom] sale, making it a condition for release of roughly $47 million in aid annually over three years and linking it to about $4.4 billion in foreign-debt relief for Nicaragua.”
As for the December 26 tsunami, the most devastated countries have seen almost no debt relief, and most of the World Bank’s emergency aid has come in the form of loans, not grants. Rather than emphasising the need to help the small fishing communities who comprise more than 80 per cent of the wave’s victims, the bank is pushing for expansion of the tourism sector and industrial fish farms. As for the damaged public infrastructure, like roads and schools, bank documents recognise that rebuilding them “may strain public finances” and suggest that governments consider privatisation (yes, they have only one idea). “For certain investments,” notes the bank’s tsunami-response plan, “it may be appropriate to utilise private financing.”
As in other reconstruction sites, from Haiti to Iraq, tsunami relief has little to do with recovering what was lost. Although hotels and industry have already started building on the coast, in Sri Lanka, Thailand, Indonesia and India, governments have passed laws preventing families from rebuilding their oceanfront homes. Hundreds of thousands of people are being forcibly relocated inland, to military-style barracks in Aceh and prefab concrete boxes in Thailand. The coast is not being rebuilt as it was – dotted with fishing villages and beaches strewn with handmade nets. Instead, governments, corporations and foreign donors are teaming up to rebuild it as they would like it to be: the beaches as playgrounds for tourists, the oceans as watery mines for corporate fishing fleets, both serviced by privatised airports and highways built on borrowed money.
In January, the US Secretary of State, Condoleezza Rice, sparked a small controversy by describing the tsunami as “a wonderful opportunity” that “has paid great dividends for us”. Many were horrified at the idea of treating a massive human tragedy as a chance to seek advantage. But, if anything, Rice was understating the case. A group calling itself Thailand Tsunami Survivors and Supporters says that for “businessmen-politicians, the tsunami was the answer to their prayers, since it wiped these coastal areas clean of the communities which had previously stood in the way of their plans for resorts, hotels, casinos and shrimp farms. To them, all these coastal areas are now open land.”
Disaster, it seems, is the new terra nullius.

Guantanamo and the New Legal Order By Jean-Claude Paye
Monthly Review, May 2005

The “war against terrorism” has provided all executive branches of the leading Western governments with a perfect opportunity to make some deep adjustments to society. These changes are so far-reaching that they approach a shedding of the old political regime. We in the West are witnessing a reversal of the role of criminal procedure right across the board. Its usual function—to guarantee fundamental freedoms and cap the powers of police and government—is morphing into the opposite, a suspension of constitutional order. By extending exceptional proceedings to all stages of the criminal process—from inquiry to trial—private life is being invaded and the expression of public freedoms chilled. The antiterrorist legislation is explicitly political, and the subjectivity of its approach leaves significant room for interpretation. The arbitrary nature of the antiterrorist measures comes out particularly clearly in the lists of individuals and organizations officially labeled as “terrorists.” Being listed means that one can legally be subjected to measures such as close-up surveillance, violation of the privacy of all means of communication from mail to electronic, and having bank accounts frozen.

These measures are common to all nations, but the United States goes one step further. It has set about reorganizing its penal system by making outright violence an integral part of the legal system. Such action affects foreign nationals accused of terrorism or U.S. citizens labeled as “enemy combatants” by the Pentagon, and whose constitutional guarantee that they would not be deprived of liberty without due process of law has been suspended with the approval of the U.S. Supreme Court.

Anomaly

The Patriot Act sanctions unlimited detention of foreign nationals suspected of taking part in or being a member of an organization listed as terrorist by the executive. The executive order of November 13, 2001, set up ad hoc military commissions to try those accused of participating in or supporting such organizations. Trials can be conducted in secret and—contrary to military law—there is no civil appeal procedure. These ad hoc military courts are a clear departure from both U.S. criminal and military law.

Over 1,200 people have been arrested and detained without charge since September 11, 2001, in most cases on no apparent grounds other than of being Arabic, Muslim, or South-East Asian in origin. Most have since been released, but some are still being held uncharged.1 These people in most cases have been deprived of the right to counsel or to challenge their detention. While in custody, they have been maltreated, tortured, and prevented from practicing their religion, all in flagrant violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States.2

It was the war in Afghanistan that provided the opportunity for prisoners to be arrested and held at Guantánamo. Around 540 people from forty-odd countries are still detained at the U.S. naval base; only 9 have been charged. According to the executive order, these prisoners will be tried by a military court specially set up for foreign nationals accused of terrorism.

The Pentagon has always been against Guantánamo detainees challenging their confinement. It has denied them prisoner of war status, and hence the possibility of exercising rights guaranteed by the Geneva Convention. The administration has been careful not to resort to U.S. criminal law, which would have placed the prisoners under the protection of the Constitution. Instead, detainees are being held without trial and generally without being charged. They have no legal status, being neither prisoners of war, common law detainees, nor political prisoners. They form an anomaly.

Violence—Cornerstone of Imperial Order

The government justified its policy by claiming that Guantánamo naval base lies outside sovereign U.S. soil. The United States obtained what it claims to be an indefinite “lease” of the base by force in 1902, as one of the conditions for ending its occupation of Cuba. By current governing norms of international law, this 1902 treaty is invalid as contrary to jus cogens, self-determination, and the doctrine of “unequal treaties.” The administration chose the base to escape the legal clutches of the U.S. courts, and so hold detainees indefinitely, entirely at the mercy of the U.S. government. The executive has granted itself extraordinary powers that go against the Constitution of the United States, and against international law.

These claims of special dispensations are repeated far and wide by the U.S. authorities in an attempt to have their self-arrogated right to violate the common rule of law accepted by international opinion. The privilege that the United States is arrogating to itself has been broadly defended by the European Union. Cuba, as a result, was forced to abandon a vote on its April 2004 resolution to the UN Commission on Human Rights demanding that the United States “clarify the living conditions and legal status” of detainees. After a non-action motion (one that allows a resolution to be indefinitely put aside) was prepared by the United States and its allies, including the European Union and several Latin American countries, the Cubans were obliged to withdraw the resolution.3

The resolve expressed by the United States to seize people in other countries and detain them at its pleasure, coupled with the other countries’ recognition of America’s self-appointed right, heralds a new international political order. Out-and-out violence—acts of war or policing without regard for legality—is the cornerstone of this brave new imperial order.

The same goes for the extradition and cooperation agreement between the United States and the European Union, signed in Washington on June 25, 2003.4 The possibility of having a European national handed over under these circumstances, knowing that the previously universally acknowledged legal minima for fair judicial process have been repudiated by the United States, confers an extraordinary role on the United States police/prison system in the keeping of global law and order.

Anomie Made Law

After a wait of two and a half years, the U.S. Supreme Court finally pronounced on the appeals of sixteen Guantánamo prisoners on June 28, 2004. As guarantor of the Constitution, the Supreme Court ruled on two important matters. In the first ruling in Rasul v. Bush, the petitioners were UK and Australian citizens apprehended on foreign soil in the “war against terrorism.” They were imprisoned at Guantánamo without charges being brought, or evidence provided, and with no way of pleading their innocence. The U.S. government claimed it can detain the petitioners indefinitely under these conditions, and that no court has jurisdiction to examine the reasons for their detention.

The question presented was “Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Naval Base, Cuba.”5

The Supreme Court replied that U.S. courts have traditionally been open to nonresidents and may test the legality of holding foreign detainees captured abroad during the hostilities and imprisoned at Guantánamo.6 “The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U.S.C. §2241, which authorizes district courts, ‘ within their respective jurisdictions’ to entertain habeas applications by persons claiming to be held in violation with the...laws...of the United States. Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ‘ultimate sovereignty.’”7

The Supreme Court states that “irregular combatants” (a term used by the U.S. administration for non-U.S. nationals captured in Afghanistan) may challenge their confinement in a civil court by claiming that such charges do not apply to them.

The Court clearly states that detainees may contest the legality of their detention by petition, arguing that they are being held indefinitely by the executive, without trial. In other words, it would appear that the Supreme Court has not called into question the U.S. claim to punish at its total discretion those charged with the supposed offense of being “illegal combatants”—that is, of daring to oppose U.S. forces anywhere in the world. A trial merely gives the petitioner a chance to prove that he was “engaged [neither] in combat [n]or in acts of terrorism against the United States.”

The second ruling on Hamdi v. Rumsfeld affects U.S. nationals detained as “enemy combatants.” Before the Supreme Court judgment, the government line had been backed by the Court of Appeals for the Fourth Circuit, which ruled that the petitioner’s detention was legal. The court “was in entire agreement about the fact that he did not have the chance to contest his designation as an enemy combatant.”8 The judgment allowed the government to claim recent jurisprudence ratifying indefinite custody for American citizens.

The following questions were presented to the Supreme Court:

Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an “enemy combatant”?...

In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials an “enemy combatant” does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch’s asserted justification of the detention?9

The second ruling recognizes the executive’s power to incarcerate a U.S. citizen accused of terrorism without trial, and even without charges. However, unlike the Court of Appeals, the Supreme Court does not sanction the unlimited detention of prisoners. It reaffirms “the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.” The Court concluded that “although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”10

Justice Souter was in partial disagreement with the judgment since, according to him, the detention is illegal. He aligns himself with the majority decision by concluding that it gives the petitioner a wonderful opportunity to prove he is not an enemy combatant. Again, the notion of legality advanced in the judgment is not about the charge itself, but only about its applications, the unlimited nature of the detention, and the right to challenge its factual basis before a neutral tribunal.

A New Legal Order

The decision by the highest legal authority in the land was hailed as a victory by human rights organizations. For Steven Shapiro, director of the ACLU (American Civil Liberties Union), the rulings called back into question “the administration’s argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts.”11 The view of Human Rights Watch was that “the Supreme Court’s decisions will force the Bush administration to comply with the law rather than the whims of the Executive.”

But things are not unilateral. The Supreme Court’s finding does not reject the executive’s claim of power to seize and incarcerate anyone it calls a “terrorist.” Rather the decision rejects the claim to detain indefinitely such persons without judicial review of the basis for the detention. If the Supreme Court’s decision clearly underlines that the executive may not act outside the rule of law, the executive itself is a long way from complying with the notion of a legal state.

Though the pseudo-legal terms “enemy combatants” (used for U.S. nationals captured in the “war against terrorism”), or “illegal combatants” (used by the administration to justify the indefinite detention of those captured), are unknown in military or criminal law—be it American or international—the rulings do not oppose such notions. By granting anyone so charged the right to challenge the factual basis of their detention, the Supreme Court rulings are effectively endorsing an exceptional right conjured up by the executive out of the blue. The Court’s rulings clear the way for the executive’s operations; instead of opposing the anomaly they make it law.

The Supreme Court merely gives the prisoners the right to appeal to a federal judge, and does not guarantee them formal access to a lawyer, thus endorsing exceptional procedures at the detention and the trial stage. At trial it establishes a veritable regime of exceptionality, and reverses the burden of proof, for it is the prisoners challenging their detention who are to present the evidence proving they have been improperly detained—albeit under unlawful charges.

The Supreme Court may have reminded the executive it cannot by fiat abolish the most minimal notions of judicial review. But it does not oppose the government’s self-conferred legal privileges—principally the implementation of an exceptional right in its relations with the rest of the world. It confirms the “legal specificity” of the United States by not opposing the executive’s tendency tacitly to repudiate the Geneva Conventions and override the statutes of the International Criminal Court. It gives new legitimacy to the idea that U.S. political and judicial authorities can grant themselves global extraordinary powers where “terrorism” is concerned.

A Permanent Show of Strength

The point at which this claim of a novel global police power becomes enshrined in law is not set in stone. The Supreme Court’s decisions leave room for interpretation—such as the idea of a “neutral court”—a fact that the administration will exploit. To counter the rulings, the Pentagon decided on July 7, 2004, to institute an examination procedure that goes beyond any legal civilian or military bounds. The procedure involves military created “Combatant Status Review Tribunals,” specially set up to determine whether the prisoners’ detention as “enemy combatants” is justified. They comprise three officers to be called “neutral,” at least one of whom is a military judge. The prisoner is assisted by an interpreter and an officer to help him put his case together. Yet he is still denied access to a lawyer. To comply with the Supreme Court ruling these special courts must inform the prisoners of their right to challenge their detention before a federal court. The administration can therefore argue before civil courts that the plaintiffs’ demands have already been examined.

The current administration is doggedly resisting the Supreme Court’s decision and is determined to set up new exceptional procedures to counter any fallout from the ruling. The constraints the Pentagon wants to impose on the detainees’ lawyers are good examples of this process. It authorized three civil lawyers to meet Guantánamo prisoners for the first time on August 20, 2004. It also tried to force them to accept conditions such as recording their clients’ interviews and allowing their notes to be read by the prison administration. Having refused to accept the detainees’ option to be represented by civil lawyers as a right, but rather a privilege resting on its goodwill, the Pentagon has also refused to tell lawyers the reasons for their clients’ imprisonment. It has also refused to commit itself to letting lawyers see their clients again at some stage in the future.12 The lawyers have simply stopped visiting.

The Pentagon’s attempt to impose a discretionary power on legal representation for detainees is unwavering. Since February 2004, the government has allowed one of the petitioners, the U.S. national, Yaser Hamdi, to consult a lawyer, but by no means does it concede this as a right.

On August 24, 2004, four prisoners from the Guantánamo camp appeared before a military commission. Instituted by presidential decree (the executive order of November 13, 2001) the mission of these ad hoc courts is to try foreign nationals accused of terrorism—or in the Bush administration’s terminology, “enemy combatants.” Such courts are a departure from the entire body of U.S. criminal and military law. They are composed of five military judges appointed by the executive. The accused have access to an officially appointed military lawyer. They later get access to a civil lawyer but one whose role is limited. He does not have access to all the facts of the case, and any information classed as a “defense secret” is withheld from him. He also has to leave the hearing whenever such classified evidence is presented. The level of proof is drastically reduced: it is good enough that it “be convincing to a reasonable person.”

This mockery of legality is a real test of whether any constraints at all can be imposed upon the government. Nothing is defined in concrete terms. Procedure is made up from one day to the next, and evolves with public reaction.

In this context where the administration can create and interpret the law, legal decisions are the result of a sheer show of strength.

This creates an unstable and kaleidoscopic legal regime. The president reserves the right to appoint the judges who try any foreign nationals accused of terrorist activities in the special military commissions. If arrested on U.S. soil and suspected of being part of a terrorist organization designated as such by the attorney general, these people can be held indefinitely under the 2001 executive order. However, the Supreme Court ruling grants prisoners captured abroad the right to show before a civil court of law that the enemy or illegal combatant charges brought by the executive do not factually apply to them.

We are in a period of transition, with the executive trying to restructure the legal regime around extraordinary powers granted by Congress, or by itself. This is a process that leads to the establishment of a new kind of political regime.

The State of Emergency or Dictatorship

The Supreme Court judgment reinforces the executive’s initiatives by claiming that “the detention of these persons for the duration of the particular conflict is fundamental, and is accepted as an episode of the war, that it is a consequence of the exercise of the necessary and appropriate force which Congress has authorized to be employed.”13

The detentions are founded on the Congressional act that stipulates “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”14

According to Supreme Court Justice Scalia, who opposed the majority ruling, Congress’s authorization cannot be considered a simple suspension. The suspension clause in the Constitution carefully defines the conditions under which the rule of law may be suspended, as with rioting or invasion. Scalia is the most overt reactionary on the Court, a member of the right-wing Catholic Opus Dei, an organization that served for most of its shadowy existence as a central prop of the fascist Franco regime in Spain.

For Justice Scalia, “the role of habeas corpus is to determine the legality of the detention pronounced by the Executive, not...to render it legal.” He believes that “it is not the role of a habeas corpus court to legalize an illegal detention,”15 and asserts that “if civil rights have to be reduced, it must be done openly and democratically as required by the Constitution, rather than by silent erosion, by a judgment of this Court.” According to Justice Scalia, the true suspension of the rule of law rests not so much on vague Congressional authorization as on this ruling, which gives it a legal application. For Justice Scalia, a fierce opponent of “judicial activism,” the most elementary of civil rights are being suspended in the wrong way. A suspension of law should rather take place within the framework laid down by the Constitution, which limits the option to war or insurrection.

Congress’s authorization is highly abstract. It does not state precisely what the “appropriate measures” are that the president is to take. Nor does it mention the suspension of habeas corpus in any way, shape, or form. Without explicitly stating the conditions, this authorization hands the executive the power to grant itself extraordinary privileges. The Supreme Court ruling specifically enacts the suspension of the rule of law, and it is the Supreme Court that lays down the conditions of this suspension and makes it law. For the arch-reactionary Scalia this is sloppy thinking. Far better for Scalia would be a simple state of war and military emergency, under which habeas corpus could be suspended constitutionally without further ado.

These judgments endorse the unlawful “enemy combatant” and “illegal combatant” charges by making them a part of criminal procedure, which is again central here. They bring such charges into constitutional territory by tying their applications in with habeas corpus.

They alter the legal regime by legalizing the government’s right to arrest someone and hold him indefinitely, unless he can prove before a neutral court that the facts negate the government’s accusations. And so they reverse the burden of proof.

The executive has a very potent arsenal of legal privileges at its disposal in the “war against terrorism.” Their scope changes with the latest show of strength as a result of the links between laws and decrees granting the administration exceptional powers on the one hand, and rulings that make such abstractions part of the legal order of things, on the other. This transformation of the legal order is significant. Bringing the illegal charges into criminal procedure legalizes the executive’s self-proclaimed judicial powers and lays the foundations of a new kind of political regime.

The Supreme Court rulings inject pure violence into the rule of law. They provide confirmation of the interpretation of the legal theoretician, Carl Schmitt,16 for whom the exception serves as the basis of a new legal regime. The executive can thus grant itself legislative and judicial privileges that weaken the formal separation of powers. The Supreme Court’s decisions strengthen the president’s self-appointed role as judge and jury.

In the state of emergency the extent of the powers magistrates have at their disposal is a direct result of the suspension of laws limiting their privileges. The extraordinary powers of both the executive and police stem from diminishing the mechanisms that protect fundamental freedoms. The state of emergency is a state without law.

Historically, this form of government tends to suspend public and private freedoms when threatened. The procedure is not associated with any specific circumstances, nor with an interval of time. It is instituted for the duration, but its role is to become the rule. The state of emergency becomes a permanent fixture. But the notion of a generalized state of emergency is in itself a contradiction. The generalized state of emergency—as Giorgio Agamben conceives it—is not stable.17 In the “war against terrorism” the suspension of the rule of law is not an end in itself.

A state of emergency that takes indefinite hold, and affects all public and private spheres, brings about a political sea change. It marks an end to the formal separation of powers, and gives the executive the kind of authority allotted to judges: the authority to state and interpret the law, the authoritarian power of dictatorship.

Notes

1. Marjorie Cohn, “The War on Civil Liberties in the US since 11 September,” speech given at the colloquium “European Antiterrorist Legislation and the Protection of Human Rights,” Progress Lawyers Network, Brussels, February 27, 2004.
2. “Group Reports Mistreatment of Detainees,” New York Times, March 15, 2002.
3. “Guantánamo: la Commission des droits de l’ homme ne condamne pas les Etats-Unis,” Le Monde, April 22, 2004.
4. Jean-Claude Paye, “Polizia e giustizia USA-UE, un rapporto imperiale,” La rivista del manifesto, no. 52, July–August 2004.
5. CA DC, 321 F.3d 1134, 03-334 RASUL v. BUSH, http://www.supremecourtus.gov.
6. http://www.supremecourtus.gov/opinions/03pdf/03-334.pdf, “Syllabus.”
7. http://www.supremecourtus.gov/opinions/03pdf/03-334.pdf, “Opinion,” pp. 4–17.
8. http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, “Opinion of the Court,” p. 1.
9. CA 4, 316 F.3d 450, 03-6696 Hamdi v. Rumsfeld, http://www.supremecourtus.gov.
10. http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, “Opinion of the Court,” p. 1.
11. “Satisfaction chez les défenseurs des droits de l’ homme,” Le Monde, June 30, 2004.
12. “Washington a autorisé des avocats civils à se rendre à Guantánamo” Le Monde, August 31, 2004.
13. http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, “Opinion of the Court.”
14. http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, J. Scalia, “Dissenting,” p. 24.
15. J. Scalia, “Dissenting,” p. 24.
16. Carl Schmitt, La Dictature (Le Seuil, 2000).
17. Giorgio Agamben, “L’ état d’ exception,” Le Monde, September 12, 2002.

US had advance warning of tsunami: Canadian professor

By Khalid Hasan

01/03/05 "Daily Times" -- WASHINGTON: A Canadian expert has claimed that the US Military and the State Department were given advance tsunami warning and America’s Navy base on the island of Diego Garcia in the Indian Ocean was notified but the information was not passed on to the countries that bore the brunt of the disaster.

Prof. Michel Chossudovsky of the University of Ottawa asks in an analysis produced for the Venus Project why fishermen in India, Sri Lanka and Thailand were not provided with the same warnings as the US Navy and the US State Department. He wants to know why the US State Department remained mum on the existence of an impending catastrophe. With a modern communications system, why did the information not get out? By email, telephone, fax, satellite TV, he asks, as it could have saved the lives of hundreds of thousands of people. 

Prof Chossudovsky writes that the US authorities had initially recorded 8.0 on the Richter scale. As confirmed by several reports, US scientists in Hawaii, had advanced knowledge regarding an impending catastrophe, but failed to contact their Asian counterparts. According to him, Charles McCreery of the Pacific Warning Centre in Hawaii confirmed that his team tried desperately to get in touch with his counterparts in Asia. According to McCreery, the director of the National Oceanic and Atmospheric Administration’s centre in Honolulu, the team did its utmost to contact the countries. 

The team contacted the US State Department, which apparently contacted the Asian governments. The Indian government has confirmed that no such warning was received. The Director of the Hawaii Warning Centre stated that “they did not know” that the earthquake would generate a deadly tidal wave until it had hit Sri Lanka, more than one and a half hours later, at 2.30 GMT. “Not until the deadly wave hit Sri Lanka and the scientists in Honolulu saw news reports of the damage there did they recognise what was happening. Then we knew there was something moving across the Indian Ocean,” McCreery told the New York Times on 27 December. “This statement is at odds with the Timeline of the tidal wave disaster. Thailand was hit almost an hour before Sri Lanka and the news reports were already out. Surely, these reports out of Thailand were known to the scientists in Hawaii, not to mention the office of Sec. Colin Powell, well before the tidal wave reached Sri Lanka,” argues the Canadian professor.

“We wanted to try to do something, but without a plan in place then, it was not an effective way to issue a warning, or to have it acted upon,” Dr. McCreery said. “There would have still been some time - not a lot of time, but some time - if there was something that could be done in Madagascar, or on the coast of Africa,” he added. The Canadian academic finds the statement “inconsistent.” The tidal wave, he argues, reached the East African coastline several hours after it reached The Maldives islands. According to news reports, Male, the capital of the Maldives was hit three hours after the earthquake, at approximately 4.00 GMT. By that time everybody around the world knew. 

Prof. Chossudovsky writes, “It is worth noting that the US Navy was fully aware of the deadly tidal wave, because the Navy was on the Pacific Warning Centre’s list of contacts. Moreover, America’s strategic Naval base on the island of Diego Garcia had also been notified. Although directly in the path of the tidal wave, the Diego Garcia military base reported ‘no damage’,” All that was needed was for someone to pick up the phone and call Sri Lanka, he adds. Charles McCreery, director of the Pacific Tsunami Warning Centre, said, “We don’t have contacts in our address book for anybody in that part of the world.” The fact is that only after the first waves hit Sri Lanka did workers at National Oceanic and Atmospheric Administration’s Pacific Tsunami Warning Centre and others in Hawaii start making phone calls to US diplomats in Madagascar and Mauritius in an attempt to head off further disaster. “We didn’t have a contact in place where you could just pick up the phone,” Dolores Clark, spokeswoman for the International Tsunami Information Centre in Hawaii has said. “We were starting from scratch.” 

Prof. Chossudovsky argues that these statements on the surface are inconsistent, since several Indian Ocean Asian countries are in fact members of the Tsunami Warning System. There are 26 member countries of the International Coordination Group for the Tsunami Warning System, including Thailand, Singapore and Indonesia. All these countries would normally be in the address book of the PTWC, which works in close coordination with its sister organisation the ICGTWS, which has its offices in Honolulu at the headquarters of the National Weather Service Pacific Region Headquarters in downtown Honolulu. The mandate of the ICGTWS is to “assist member states in establishing national warning systems, and makes information available on current technologies for tsunami warning systems.” 

Australia and Indonesia were notified. The US Congress is to investigate why the US government did not notify all the Indian Ocean nations in the affected area: “Only two countries in the affected region, Indonesia and Australia, received the warning” Although Thailand belongs to the international tsunami-warning network, its west coast does not have the system’s wave sensors mounted on ocean buoys. The northern tip of the earthquake fault is located near the Andaman and Nicobar Islands, and tsunamis appear to have rushed eastward toward the Thai resort of Phuket. “They had no tidal gauges and they had no warning,” said Waverly Person, a geophysicist at the National Earthquake Information Centre in Golden, Colorado, which monitors seismic activity worldwide. “There are no buoys in the Indian Ocean and that’s where this tsunami occurred 

Prof. Chossudovsky has framed the following three questions: First: Why were the Indian Ocean countries’ governments not informed? Were there “guidelines” from the US military or the State Department regarding the release of an advanced warning? According to the statement of the Hawaii based PTWC, advanced warning was released but on a selective basis. Indonesia was already hit, so the warning was in any event redundant and Australia was several thousand miles from the epicentre of the earthquake and was, therefore, under no immediate threat. Two: Did US authorities monitoring seismographic data have knowledge of the earthquake prior to its actual occurrence at 00.57 GMT on the 26th of December? The question is whether there were indications of abnormal seismic activity prior to 01.00 GMT on the 26th of December. The US Geological Survey confirmed that the earthquake which triggered the tidal wave measured 9.0 on the Richter scale and was the fourth largest quake since 1900. In such cases, one would expect evidence of abnormal seismic activity before the actual occurrence of a major earthquake. Three: Why is the US military Calling the Shots on Humanitarian Relief? Why in the wake of the disaster, is the US military (rather than civilian humanitarian/aid organizations operating under UN auspices) taking a lead role? The US Pacific Command has been designated to coordinate the channeling of emergency relief? Marine Corps Lt. Gen. Rusty Blackman, commander of the 3rd Marine Expeditionary Force based in Okinawa, has been designated to lead the emergency relief programme. Lieutenant General Blackman was previously Chief of Staff for Coalition Forces Land Component Command, responsible for leading the Marines into Baghdad during “Operation Iraqi Freedom.” Three “Marine disaster relief assessment teams” under Blackman’s command have been sent to Thailand, Sri Lanka and Indonesia. US military aircraft are conducting observation missions. 

Prof. Chossudovsky writes, “In a bitter irony, part of this operation is being coordinated out of America’s Naval base in Diego Garcia, which was not struck by the tidal wave. Meanwhile, USS Abraham Lincoln carrier strike group, which was in Hong Kong when the earthquake and tsunamis struck, has been diverted to the Gulf of Thailand to support recovery operations. Two Aircraft Carriers have been sent to the region. Why is it necessary for the US to mobilise so much military equipment? The pattern is unprecedented ... Why has a senior commander involved in the invasion of Iraq been assigned to lead the US emergency relief program?”

Copyright: Daily Times.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. Information Clearing House has no affiliation whatsoever with the originator of this article nor is Information Clearing House endorsed or sponsored by the originator.)

Journalists Close Ranks; Demand Probe of Media Killings

The Philippine press closed ranks Aug. 16 as at least 200 journalists, broadcasters and photographers from the multimedia industry marched to the gates of the national police headquarters at Camp Crame, along Edsa, Quezon City to denounce police incompetence in solving media killings. Similar protests were held in the Visayas and Mindanao.

By Aubrey SC Makilan
and Ronalyn V. Olea
Bulatlat  



Their rage is hotter than the news  Photo by Aubrey SC Makilan

The Philippine press closed ranks Aug. 16 as at least 200 journalists, broadcasters and photographers from the multimedia industry marched to the gates of the national police headquarters at Camp Crame, along Edsa, Quezon City to denounce police incompetence in solving media killings.

Led by the National Union of Journalists of the Philippines (NUJP), the journalists – at least half of them from the provinces and as far away as Mindanao – held a picket outside the Crame gates. Some of the placards screamed, “Justice for slain journalists!,” “Stop media harassment!” and “Uphold press freedom!”

Some protesters, led by NUJP secretary general Carlos H. Conde, staged a “die-down” to dramatize the media killings and the press’ determination to defend their freedom.

In a news conference held at Congress later, Bayan Muna Rep. Satur Ocampo denounced the media killings as a threat to press freedom while his colleague, Rep. Teddy Casiño noted that human rights violations have become worse with the slaying of journalists and other professions.

Rep. Gilbert Remulla vowed to convene the Committee on Public Information, which he chairs, to inquire into the spate of media killings. The three legislators will file a joint resolution to start the investigation.

NUJP members led by their chair, Inday Espina-Varona, who also went to Congress from Camp Crame were stopped at the Batasan Pambansa complex gate for wearing black T-shirts. They were allowed to enter after a long wait following the intercession of Congressman Ocampo.

Joining the morning’s picket-rally, aside from NUJP, were the Philippine Center for Photo Journalism, Press Photographers of the Philippines, Mindanao Institute of Journalism, Center for Community Journalism and Development, Batangas Newswriters Association, Kapisanan ng mga Brodkaster ng Pilipinas, Pro-4 Media Group, Center for Media Freedom and Responsibility, NUJP chapters in Southern Tagalog and Central Luzon, College Editors Guild of the Philippines and Union of Journalists of the Philippines-UP Chapter.

In Bacolod City, leaders of the local chapter of NUJP reported that about 50 journalists marched through the streets with placards and streamers before converging in front of the city hall where they held a rally. Trimedia reporters from the Negros Press Club and Congress of Active Young Journalists joined the march-rally to denounce the media killings and demand state responsibility.

The Bacolod media also rejected police proposal to arm journalists for self-defense.

Black T-shirts

Journalists in Iloilo City and Antique wore black shirts in protest. Broadcasters read the list of martyrs of the press accompanied by the playing of solemn music.

In Gen. Santos City, southern Philippines local mediamen held a motorcade and stopped at the police headquarters where they lit candles and offered prayers to their fallen colleagues. The rally was highlighted by the burning of mock coffins symbolizing the threats to press freedom.

Similar protests were held in the cities of Cebu and Pagadian.

In Quezon City, a dialogue with the press was later held inside Crame’s multi-purpose hall. Philippine National Police (PNP) officials led by Deputy Director General Edgardo Aglipay assured the media that police authorities are looking into the media killings – 55 since 1986, six of them this year alone.

NUJP and the other media groups took to the streets in Metro Manila as well as in Davao in southern Philippines and Bacolod in Negros on the heels of the spate of killings victimizing three journalists in just a month. NUJP protested government’s apparent inaction on the cases, adding that none of the 55 incidents of killings has been looked into by the authorities.

Many of the media killings that have been documented took place in the provinces and involved policemen and soldiers.

Crame dialogue

In the dialogue, however, Col. Ignacio Radovan, head of Task Force Newsmen, disputed NUJP’s claim, clarifying that 20 to 30 percent of the cases have been resolved. 

Contrary to NUJP claim, Col. Ignacio Radovan, head of the Task Force overseeing murder cases against journalists, said that 20 to 30 percent of the cases have been resolved. Asked to clarify, Aglipay said that 20-30 percent of the cases have been filed for prosecution and were therefore already outside the hands of the police.  


Ma. Rowena Endrinal, daughter of radio broadcaster Ruel Endrinal who was slain in February this year, asked the PNP officials, “Kelan mahuhuli ang suspect sa pagpatay ng tatay ko?” (When will you arrest the suspect in the killing of my father?). 

Endrinal, known as a hard-hitting broadcaster of DWRL in Albay province south of Manila, was killed for exposing corruption and gambling operations in the province, reports indicated.

According to Ma. Rowena, the PNP has identified the main suspect as Clarito Arizobal, said to be among Albay’s top three most wanted criminals. But Arizobal remains on the loose.

Arnell Ozaeta, president of Batangas News Writers Association, also hit the PNP for the snail-paced investigation of the killing of Arnnel Manalo. A correspondent of Bulgar tabloid and DZRH reporter, Manalo was gunned down in Bauan, Batangas only last Aug. 5. 

Ozaeta revealed that the family of Manalo is hiding for fear of their lives. He added that the Bauan police have not even interviewed Manalo’s brother, the sole eyewitness to the killing.  “Anong klaseng imbestigasyon ba ‘yan?” (What kind of investigation is that?).

Meanwhile, Delfin Mallari Jr., correspondent of the Philippine Daily Inquirer, lashed out at police indetness in solving the killing of his college mate and fellow journalist Apolinario Pobeda.. Pobeda, who was with DWTI  in Lucena City, was killed on May 17 last year. 

Damalerio’s case

One of the celebrated cases was that of Edgar Damalerio. A reporter of the Zamboanga Scribe and Mindanao Gold Star in Pagadian City, Damalerio was killed on May 3, 2002.

Merpu Roa of Mindanao Institute of Journalism, who brought up Damalerio’s case in the dialogue, reminded the PNP that the case remains unsolved despite the fact that a photo of the suspected killer, PO Guillermo Wapille, has been all over the newspapers in Zamboanga for almost everyday.

NUJP chairperson, Inday Espina-Varona, challenged Aglipay and the other police officials to resolve immediately Damalerio’s case. Conde, on the other hand, said the case is very important in winning back the confidence of the public to the PNP.

Aglipay promised to hunt down the main suspect.

At presstime, NUJP leaders and other journalists were in Congress to ask legislators to conduct hearings on the media killings.

Meanwhile, a number of journalists and editors expressed their misgivings at the unsolved media killings even as they pressed for action by the members of media themselves to address the continuing threat of harassment against the sector.

In a roundtable discussion organized by the NUJP at Balai Kalinaw in UP Diliman, Quezon City Aug. 12, the media practitioners agreed to map out plans to stop the killings and give justice to their fallen colleagues.

“’Pag binitawan namin ‘to, bibitawan ng pulis ‘to e” (If we give up on this, the police won’t do anything), said Arnell Ozaeta, of Philippine Star in Batangas and member of the Batangas Newswriters Association.

Ozaeta said killers of journalists go scot-free knowing that law authorities would look the other way. What is worse, he said, killings go on because nothing is solved anyway.

Strong Republic

Some participants in the discussion asked if the killings are a pattern in President Gloria Macapagal-Arroyo’s ”Strong Republic.” Joe Cortez, a magazine writer, said that he only remembers Adolf Hitler when talking about the “strong republic.”

Others noted that there could be many incidents of harassment that remain unreported. Mhuck Gaveta, a colleague of slain journalist Manalo, and another who now hides for fear of her life, feared they might suffer the same fate met by their friend.

Manalo’s colleagues believed that the reason behind his death was his story titled, “Gusto ko nang sumuko ngunit…papatayin nila ako” (I want to give up…but they’ll kill me) published in Veritas. The story was based on an interview with the president of the Association of Barangay Captains (ABC) who had killed, in his line of duty, an aide of an influential businessman. His colleagues said Manalo could have earned the businessman’s ire for airing the barangay captain’s side.

In a recent national TV interview, Gayeta pointed to an “influential man” as being behind Manalo’s killing. “Kilala namin s’ya pero mahirap magsalita” (We know who he is but it’s difficult to say). He began receiving death threats after the TV talk. He thought he was being tailed by suspicious-looking men in several occasions.

Manalo’s other colleague was forced to go on leave for a week. Men who refused to identify themselves had called their office several times asking for the female journalist’s address, car plate number and other information.

Net25 anchor Arlyn dela Cruz also reported that PNP Director General Hermohenes Ebdane had advised journalists “Kung alam n’yo nang mainit kayo,’wag na kayong bumanat” (If you know you’re “hot,” stop criticizing). She also wondered why Interior and Local Government Secretary Angeloe Reyes said he saw no trend in the media killings.

Referring to the officials’ remarks, the NUJP said in a statement: "That is not a solution to the continuing assaults. (Their) prescription falls in directly with what the enemies of press freedom want: a cowed, cringing, silent press."

NUJP treasurer May Rodriguez, on the other hand, called the fellow journalists’ attention that not only are journalists being killed but also lawyers, judges and other professionals. “They kill lawyers. They kill judges. They kill journalists. Is there a trend? Is this not something to be worried about?” she asked.

Earlier, the NUJP castigated the PNP for its proposal to arm journalists. The group said it is “a virtual admission by the law-enforcement authorities of how inutile they are against those that seek to silence the press of this country.” 

While criticizing officials’ reactions to the continued murders of Filipino journalists, the NUJP members agreed to come up with independent actions to address the killings.

Among other plans, the NUJP agreed to form an investigating committee that will probe into the cases of killings and harassments of media workers and to ask Congress to investigate. Bulatlat

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