Guantanomo & Boeremag

By Diana R. Gordon
Global Policy Forum
*Opinion Forum
http://www.globalpolicy.org/
January 17, 2004

In his 2003 State of the Union speech, George Bush said
that "One by one, the terrorists are learning the
meaning of American justice." A year later, the facts
of the matter are increasingly disturbing: While
detained in a Navy brig in North Carolina, James Yee
was kept in leg irons and allowed to read nothing but
the Koran, his lawyer asserts. The former Muslim
chaplain was initially suspected of aiding terrorism
but is now charged with taking home a few classified
documents. Repeated charges that U.S soldiers have shot
and otherwise abused Iraqis in a US prison near Baghdad
are finally to be investigated. Detainees at Guantánamo
are being held in tiny cells for up to 24 hours a day
and have no access to lawyers, even when under
interrogation.

The Western public is used to thinking of practices
like this as the depredations of authoritarian states.
But in the new millennium they are as normal for United
States policy as the latest orange alert.

The Bush administration’s handling of detainees at home
and abroad looks uncomfortably like apartheid justice.
According to a July 2003 Amnesty International
memorandum based on inspection of detention centers in
Iraq, "Detainees continue to report suffering extreme
heat while housed in tents; insufficient water;
inadequate washing facilities; open trenches for
toilets; no change of clothes, even after two months’
detention; no hygiene packs and no books, newspapers,
radios or writing materials." It sounds like the
experience of Nelson Mandela, who wrote in his
autobiography of being held with five other colleagues
accused of treason in filthy cells, of having only "a
single sanitary pail with a loose lid and vermin-
infested blankets." Iraqis have been forced to stand
outside for days on end in the blistering heat, calling
to mind the years Mandela spent laboring under the
African sun in the Robben Island lime quarry.

Today’s democratic South Africa doesn’t treat even its
worst enemies this way.

Consider the treason trial that will resume there on
January 26. White racist extremists are charged with
setting off bombs in Soweto a year ago and trying to
blow up a bridge and an airport—a total of 42 crimes.
While their plan to overthrow the ten-year-old
government of the African National Congress was
admittedly nutty—it included marching the black
majority up the super-highways and out of the country—
it was the first substantial, violent challenge to the
new regime and therefore to be taken seriously.

The case against the Boeremag (Afrikaans for "Boer
force," meaning a kind of army) members demonstrates to
the world that criminal justice in democratic South
Africa has come of age While there were complaints
during the investigation about police raids (with
warrants) on members of other right-wing organizations
and defendants allege that privileged documents were
seized, there have been no charges that defendants were
illegally arrested or that they were tortured during
interrogation, which was the norm in the apartheid
past. Unlike the United States, where the Bush
administration has refused the Guantanamo detainees
access to civilian courts to challenge their
detention—the justification is that they are not being
held on U.S. territory—Boeremag defendants may bring
even the most trivial grievances to the court. When
they complained that "black" music played on the prison
sound system was "torture," the volume was lowered. The
judge even permitted one of the accused to marry while
in detention—with several of his co-defendants in
attendance. The defendants have champions to deny their
guilt and defy the court’s jurisdiction over them; one
group has announced it will petition the UN to declare
the Constitution under which they are being held to be
invalid. Yet no government action is being taken to
repress these efforts; the public reaction tends toward
bemusement.

Perhaps most striking is the difference in the way
South Africa and the United States have handled legal
representation. While the Bush administration asserts
that Guantánamo detainees have no right to counsel and
has frequently denied access to lawyers for those held
in Iraq, the South African government is paying for
legal representation for many of the Boeremag
defendants; some were even released on bail while
awaiting trial. These differences might be explained by
indications of a greater danger posed by the prisoners
in Cuba; but the Guantánamo detainees have yet to be
charged with crime and it is still unclear how many of
them are actually even suspects. The evidence is
strong, however, that the South African accused
committed acts that killed one woman and were intended
to spread terror among millions of people.

Despite many flaws in contemporary South African
criminal justice, when it matters most it is proving to
be an instrument of democracy. The very normalcy of the
treason trial is testimony to the achievements of a
rights-oriented Constitution and the institutional
reforms that it has spawned. In the conduct of the
post-apartheid government as it responds to threats
against democracy there are lessons for the American
war on terrorism.

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Diana R. Gordon
Professor and Senior Research Scholar
John Jay College, City University of New York