The Journal of Gender, Race & Justice

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Mikaela Shotwell, Senior Note & Comment Editor

This week, Lada Gaga took to defending and defining her role in the LGBTQ community. “¿Por que?” you ask? Me too. Here’s the short version: she just isn’t quite gay enough. Sure, Gaga is sexually attracted to women. In fact, one Top 10 single—“Poker Face”—is purportedly about her trying to keep the guy she’s with unaware of the fact that she’d rather be with a woman. She even self-identifies as “the b letter.” So as far as Gaga is concerned—albeit her “b letter” proclamation is more akin to a child using numbers as euphemisms for bodily functions than a grown woman identifying her sexuality—she is bisexual. To me, inquiry over. She’s bisexual.  Fantastic.

But, in a prior interview with Rolling Stone, Gaga explained that her attraction to women is purely sexual, and she finds herself only emotionally interested in men. Since that article, Gaga has received quite a bit of criticism—from none other than the LGBTQ community—for her identification as bisexual and a part of the community. Most of the criticism, as Jezebel points out, is that Gaga uses her affiliation to pander to her fans, even going so far as to “co-opt[] a subculture to which she doesn’t totally belong.” For this post, let’s put aside the allegation that she is pandering to her fans. In fact, let’s go the whole nine yards and say the LGBTQ anthem “Born This Way” was nothing more than Gaga bulls***ing her way to millions more fans. Fine. Instead, let’s talk about this culture “to which [Gaga] doesn’t belong.”  

The contention, from what I can gather, is that to some members of the LGBTQ community, being sexually attracted to both men and women isn’t “enough” to “qualify” an individual as bisexual. Rather, “true” bisexuals are interested in relationships with both men and women. Gaga’s purely sexual attraction to women places her squarely in the merely bi-curious category. I’m going to be honest: I find this argument absurd. In fact, I take issue with so many of the sentences I have written in the last paragraph and a half, I won’t even pretend to adequately address them in this next paragraph.

My big question is this: What the hell are we—the LGBTQ community—doing? Seriously. If there was a meeting where we decided we would create a gayness threshold, where we would define which relationships “qualify” as points toward gayness, and where we decided we would be the arbiters of sexual orientation identification, I must have missed it. Maybe I wasn’t gay enough to be invited to the meeting?

I’ve heard the argument that people like Gaga detract from the LGBTQ cause, that somehow they de-legitimize the community by allowing every experimenting college girl to tell the Sigma Pi guys she’s bisexual. There is also a little more at stake: efforts by the LGBTQ community to obtain certain legal rights can hinge on how the community defines bisexuality. I understand the argument that the Gagas of the world can indirectly thwart the community’s attempts to obtain social and legal recognition.

But, I just don’t think it’s enough to turn people away. The idea that we would doubt the “qualifications” of someone who wants to be a part of the LGBTQ community seems backwards to me. I hate the idea of the community checking I.D.s at the door to the clubhouse, kicking anyone out who’s a “fake” bisexual. The community and the people I know wouldn’t think of policing the legitimacy or authenticity of someone’s orientation. Like I said, I get that there are people concerned that Gaga and the like may damage the community’s cause. But I can’t imagine anything more damaging to the cause—whatever that may be—than telling someone they can’t be a part of it.

Alex Christian, Student Writer, The Journal of Gender, Race & Justice

It seems as though American greed and lack of accountability has reared its ugly head. Again. I would hope that by the year 2011, people would have more regard for one another. But unfortunately, as I have found so many times, I completely overestimate people; especially large corporations. According to the federal government we are in the midst of the “largest case of alleged forced labor of farm workers in the United States.” www.cnn.com (search for California forced labor).

 The accused is Global Horizons Manpower Inc. and eight farms in Hawaii and Washington state. The accusation? Luring over 200 men from Thailand to work at farms where they were subject to abuse, unsanitary work and living conditions, and little compensation. www.cnn.com. Global Horizon told the Thai men that they would be earning 70-80,000 baht—coming to about $2,340 to $2, 680 per month—and the ability to secure “lucrative jobs” in the United States. What really happened? These men were paid barely $9.00 an hour. Men had to take out loans to get to the U.S. and then pay large “recruitment fees” once they were hooked up with Global Horizon. As it turned out, work wasn’t even guaranteed for these men; one Thai man reported that some days, he didn’t work at all.

 How could this even be possible? Wouldn’t we think that after the last huge human trafficking scandal that went on after Hurricane Katrina and Signal International (if you are unfamiliar with the store click here) that corporations would stop abusing human beings in the name of making more profits. Instead of the H2-B Visa that allowed Indian guest workers back in 2006 and 2007 to be trafficked to the United States, these Thai men were ushered here under the H2-A Visa that places foreign workers on farms in the United States. Why are there still such mechanisms that allow people to be exploited? And why doesn’t our government do something to ensure that people who are coming into our country with these Visas are given the same rights and abilities as every other American citizen? When are corporations going to stop the exploitation of human beings just so that their profit margin can be that much bigger?

 These are all questions that have been asked before, and that I am sure will continue to be asked for some time to come. I know that some initial reactions will be to ask, “Why didn’t they just leave?” Imagine taking out overwhelmingly large loans to come and work in the United States under a false belief that once here, things will be better. That there will be an ability to make money and send it home to their families. But instead, on arrival, these men were threatened with deportation, met with abuse, and even enduring physical assaults. Something has to be done to remedy this situation, and to ensure that American corporations aren’t exploiting foreign workers just because they can.

Jasmina Popaja, Student Writer, The Journal of Gender, Race & Justice

Hey Brian! Hey Jessica! Have you ever wondered why your names are so popular in China or India? A surprising number of foreign students and immigrants from cultures without any connection to the Anglo-Saxon heritage introduce themselves by English names. A vast majority of foreigners give up their real names and assume English names for a number of wrong reasons. Some think that the American society will be more likely to accept them.  This is a misperception because the American society and institutions value and accommodate diversity in many ways. While the United States is geographically isolated, it is not linguistically or culturally. At least 165 languages are spoken in the United States, attesting to the country’s richness in both cultural and linguistic diversity. A great number of immigrants are attracted to the United States as a place where individuals are valued for who they are and what they can accomplish through their own efforts. So why would Jianguo (learn how to pronounce this name on hearnames.com) want to change her name to Jessica?

The reason might that she grew tired of correcting the continued mispronunciations of her name. Having to correct one’s name every single time it is pronounced is not only time consuming but it also gives a sense that one is a nuisance by constantly insisting on the right pronunciation.  At this point it is appropriate to address the reasons why US natives might mispronounce an unfamiliar name. Some might not care to pronounce the name correctly. This is concerning because it shows complete disrespect for the other person and his identity. Others might tell themselves that they are not able to pronounce it properly. While it can be difficult to pronounce unfamiliar sounds, it is not impossible. So it comes down to attitudes toward diversity, including basic respect for persons from cultures other than the Anglo-Saxon. Those who perceive diversity as an integral part of the US society also know that “everyone is proud of his or her name, no matter how ‘foreign’ sounding.”

                Yet others insist on the supremacy of the Anglo-Saxon heritage and the following situation arises. I recently met an Asian student at the University of Iowa whose name is a single vowel. As part of her welcome to the University, an employee in the administration told her that it is not a name and that she has to choose a “real” name. To no surprise will other incoming foreign students want to avoid such humiliation and choose an English name.

So no Brian and Jessica, your names are not popular in China or India. They are a popular cover for those foreigners who are tired or afraid of asserting their identity. You can take off the mask and really get to know your foreign friends by insisting to pronounce their names correctly and encouraging other US natives to do the same.

Sophie Doroba, Student Writer, The Jouranl of Gender, Race & Justice

As I watch the Wisconsin Supreme Court election unfold, I’m immediately transported back to the November judicial retention vote in Iowa. Currently, favored incumbent Wisconsin Supreme Court Justice David Prosser is waiting to hear whether he has been unseated by challenger JoAnn Kloppenburg. Justice Prosser originally has a large lead in the polls, but it appears that democrats have converted their rage at Gov. Walker’s recent collective bargaining law into mass support for JoAnn Kloppenburg. The results of the election are still unknown and talk of a recount is abundant. This brings me to ask the question, “Is Wisconsin the next Iowa?”

I must concede that there are  differences between the Wisconsin election and the Iowa retention. The two judicial selection systems are different, with Iowa adhering to the appointment/retention system and Wisconsin to a general election. The two sides mobilizing against the sitting judge(s) are different, with Iowa receiving an in-pouring of money to oust three sitting judges for their decision in Varnum v. Brien to legalize same-sex marriage and Wisconsin seeing a union uprising in response to Gov. Walker’s attack on collective bargaining rights. However, the underlying issue that threatens our judicial system as we know it remains the same in both states, and unless the following questions are answered, judges around the country remain vulnerable. Should the public be allowed to take political revenge on judges? Is the judicial system just as political as the other branches of government? When has the public gone too far? Is there a system that eliminates politics from the judicial selection process?

I had always naively labored under the impression that the judicial branch is completely fair and balanced, free from outside political influences. Of course I realize that this isn’t exactly true. Most informed citizens know where our Supreme Court Justices fall on the liberal-to-conservative spectrum. I’m sure many of these citizens are also well aware of the ideologies of the justices sitting on their state supreme courts. If their state follows an appointment system, they ask which governor appointed the particular justice. If their state has a general election, they ask which political party backed the judge. But is this ok? At a moment when our country is so polarized that our government might be shutting down over a lack of compromise, it would be nice to know that we still have a check on our actions (ie. impartial justice). However, when judges are forced to participate in elections and campaign for their jobs, do we really benefit? The best person for the job becomes obsolete and instead the best campaigner runs our court.

Should the public be allowed to punish judges? I’m going to answer this question with a swift and deliberate NO. I was heartbroken when the three Iowa Supreme Court Justices were not retained in November. I simply couldn’t understand how there was a system in place that allowed judges to be removed for something other than misconduct, i.e. not performing their jobs. Instead, I saw a system that punished judges for making a legal decision that some people ideologically disagreed with. I kept thinking that even if Varnum has turned out differently, I still don’t think I would have voted to not retain if the justices had applied the law to the best of their ability.

Iowa went too far in November…and Wisconsin went too far this week. I realize that there isn’t a perfect system for judicial selection. Proponents of a general election argue that it is the most fair, allowing the public to control the system. This argument feeds into the inherent public distrust/dislike of lawyers and the judicial process. The appointment/retention system has the public grumbling about insider appointments and political game playing behind closed doors. However, I will argue that it is the public that is playing, or being played, the most in judicial selection. Ponder this example, if your company was hiring a new boss, would you let the public vote on who to hire or would you consult within your company? The clear answer is to trust your employee/employer’s expertise in selecting a proper boss. The same logic supports the appointment of judges by a committee of other lawyers and judges. Judges need to be able to do their job without the distraction of campaigning or worrying about keeping their jobs. Judging is about applying the law fairly, not popularly. The moral of the story: whatever side of the political spectrum you fall on, please stop retaliating against our judges.

Mikaela Shotwell, Student Writer, The Journal of Gender, Race & Justice

Every April, I think about an old friend of mine, Heather. It was a friendship characteristic of many for me at that early teen age—we were teammates; our interests overlapped on the softball field and we bonded over a shared love of David’s Ranch Sunflower Seeds.

In April 2001, at the age of 13, Heather participated in the murder of a man. The details of what happened aren’t particularly important, but you can read about it here. I remember Heather as bright, fun, energetic. I also remember her as immature for her age, with a tumultuous past and a truly unsettling relationship with her mother. Her mother, who was the mastermind of the murder, could barely be called such. She was verbally (and I suspected physically) abusive, more of a “friend” than a parent, and a psychological minefield all her own.

In January 2002, Heather was sentenced to 22 years for her role in the murder. She had been tried as an adult—for a crime she committed at 13. I was—and still am—appalled at the decision to try her as an adult. I know this topic has been extensively discussed and written on, but it still resonates with me, especially every April. I often hear sound-byte criticisms of the policy of trying some juveniles as adults: “They can’t vote, but we can try them as adults?” I remember saying to my dad at the time, “Dad, she can’t even be unsupervised in hotel hot tubs.”

And that’s why I have to ask: aren’t there just some ages that should be too young? Even if I were to concede (I’m not) that some juveniles should be tried as adults, isn’t there a point where we have to just say “No. Not that young.”? Every state permits juveniles to be tried as adults for certain crimes. In some states, transfer to adult court is mandated by statute for some crimes, in others, transfer is discretionary. More than half of the states currently have automatic transfer to adult court for commission of a violent felony by a 14 year-old.[1] Perhaps the automatic transfer is what’s most disturbing—there is no evaluation of the juvenile’s individual capacity to understand his actions; there is no foray into the juvenile’s susceptibility to the influence of responsible adults; there is no consideration that the juvenile could be quickly “rehabilitated.”

Despite the rational questioning I do about these policies (Does the research support their efficacy? Do they have racially discriminatory results?[2]), there is a kneejerk reaction I have to Heather’s sentence that will always control my stance on the issue. She’s just too young. Just months before the murder, the softball team had to sneak Heather into Miss Congeniality. Miss Congeniality. It was PG-13, you know.

Photo Credit: Dan DeLong/Seattle Post-Intelligencer

[1] This report is an excellent survey of the deterrent effects of transfers.

[2] For more on this concern and both sides of the issue, see this TIME article.

Al Smith, Student Writer, The Journal of Gender, Race & Justice

Usually, when I read JGRJ’s blog, I encounter opinions from other student writers that are similar to my own, and I find new and interesting issues that I hadn’t thought about. If I have a slight disagreement, I usually don’t take the time to quibble over minor points. But I disagreed with a recent post about how hate speech should not be protected speech, and I thought our audience could use a different perspective.

It’s unfortunate that I’m the one doing this. Hate speech has never been a problem in my life, and I cannot imagine the pain and the hurt that it causes. Nevertheless, I think I am correct when I say that hate speech should be protected speech. Don’t get me wrong. It’s not valuable speech. But we still don’t want to censor it.

My colleague seems to be worried that there aren’t any Muslim voices that can counteract people that hate Muslims. That’s not a problem with the free marketplace of ideas, that’s the problem when you have a marketplace of ideas. But the profit problem in our news media can’t be fixed with laws against hate speech, and it’s honestly an entirely separate issue that the nation needs to deal with.

The post mentions Muslims and Jews as examples of religious groups that are subject to bigoted speech. I recognize that the Jewish people are an ethno-religious group and that Muslims are becoming increasingly racialized. While the hate and slander that these groups receive are unacceptable, a religious belief is less of an immutable characteristic and more an idea that one group has. Some Christians claim persecution when we challenge their views on homosexuality. Is that criticism hate speech? Are atheists that argue that God does not exist engaging in hate speech? Glenn Beck is not having a reasonable debate about the issue, but my concern is that soon we won’t be able to have a reasonable debate at all. Religions are only packages of ideas. They deserve protection and their believers should be protected from slander, but there is a way to go too far.

To be fair, my colleague didn’t say that, and Glenn Beck is a biased person who causes bigotry against Muslims. The harder argument for me to make is that we should still protect hate speech against women and racial minorities. John Stuart Mill makes a few arguments in his book “On Liberty” when he justifies free expression of opinion. He doesn’t use his harm principle (“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”) Probably because he knew that speech can be harmful. Instead, the first argument he makes is that we’re not infallible, and so the opinion we’re trying to censor might be true. I highly doubt Glenn Beck is right and Navid and I are wrong, so let’s move on to a stronger argument. Let’s assume Navid and I are right, and hate speech is morally wrong. Mill says “if the [] opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds…[T]he meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.”

Racism and sexism still exist in our society. We can’t hide them behind hate speech laws. That’s the opposite of what we want. While we socially shun racists, we can see that the anonymity of the internet allows people to share their inner bigotry that they do not want to share in public. We have to know where those opinions are so that we can convince them they’re wrong, so that we can arm others with the knowledge of why racism and sexism are wrong, and so people will think about racism and sexism without reverting back to the “colorblind” or “I don’t see gender” arguments.

Plus it always helps to know where the crazies are.

Whitney Smith, Student Writer, The Journal of Gender, Race & Justice

During my studies of law in the Muslim world I was confronted with many social and governmental differences that had a profound effect on my appreciation for my personal liberties. The most striking and pervasive cultural difference that I experienced was the stark disparity in treatment of women in Egypt.  I traveled through Cairo and Alexandria, visiting courthouses and historical areas.  Women in these areas were hard to miss. Traveling in groups, women in Egypt looked like a sea of veiled shadows, floating through the streets. It was an uneasy feeling that I moved through their world as a western woman, with fewer restrictions and knowing that I could go home to the United States when I wished. I left Cairo with a heavy heart, wishing for improvement in the realm of civil rights for women in Egypt. 

For the greater portion of this year Egypt has been consumed with political protests and labor strikes. With the overthrow of President Hosni Mubarak on February 11, 2011, Egypt gained new hope for political change and progress.  I shared this hope and welcomed the thought that progress would be made. However, Amnesty International reports that female protesters were arrested, beaten, tortured, and forced to submit to “virginity tests” earlier this month.[i] For women, it seems that hopes for a “New Egypt” have been premature.

            On March 9th at least 18 female protesters were arrested in Tahrir Square and transported to a military prison in Heikstep, Egypt. During this ordeal the women were beaten and given electric shocks before being strip searched and forced to undergo a virginity test. The women were stripped naked and held in a room where male soldiers took photos of their naked bodies, before being herded into a room where a male doctor examined them. The women were told that if they were not found to be virgins they would be charged with prostitution. Women who “failed” the virginity test were reported to have received additional beatings and electric shocks as they were called prostitutes.

            All of the women were brought before a military court and eventually released on March 13. However, several received suspended prison sentences of one year. One woman was even convicted of “disorderly conduct, destroying private and public property, obstructing traffic and carrying weapons.”

            Additionally, after the female protesters were released the Egyptian Cabinet ordered a new law criminalizing protests and strikes.[ii] The new law mandates fines and possible jail time for anyone initiating or even participating in a protest. Although the Cabinet says the law will only be enforced during times of Emergency Law, this offers little comfort as Emergency Law has been in effect in Egypt since 1981. Egypt’s Emergency Law suspends constitutional rights, legalizes censorship and extends police powers. Although the Egyptian Military claims that Emergency Law will be removed when protests end, the military has not been trustworthy thus far as proven by the recent torture of female protesters.

            The hopeful who thought the revolution ended with the decline of Mubarak’s presidency are realizing that the revolution has just begun.[iii]  Now under the control of the military, Egypt has simply traded the dictator for his like-minded militia. Journalist William Fisher of The Public Record explained “I know this sounds like something out of Torquemada in the 15th Century or Mengele in the 20th. But it’s neither. It’s post-Mubarak Egypt in the second decade of the 21st Century.”[iv]

            Amnesty International maintains that “Women and girls must be able to express their views on the future of Egypt and protest against the government without being detained, tortured, or subjected to profoundly degrading and discriminatory treatment. The army officers tried to further humiliate the women by allowing men to watch and photograph what was happening, with the implicit threat that the women could be at further risk of harm if the photographs were made public.” Amnesty International is also demanding that “Egyptian authorities … halt the shocking and degrading treatment of women protesters [because women] fully participated in bringing change in Egypt and should not be punished for their activism.” Such action is not only demanded, it is necessary. The “New Egypt” owes such action to its mothers and daughters, who have been repressed and ignored for far too long.

Photo Credit: http://www.rawstory.com/rs/2011/03/23/female-protesters-in-egypt-tortured-subjected-to-virginity-test-amnesty/

Sources:

[i] http://www.amnesty.org/en/news-and-updates/egyptian-women-protesters-forced-take-‘virginity-tests’-2011-03-23

[ii] http://www.almasryalyoum.com/en/node/371465

[iii] http://my.firedoglake.com/valtin/2011/03/25/the-new-egypt-virginity-tests-for-protesters/

[iv] http://pubrecord.org/world/9133/egypt-virginity-tests-protesters-women/

Amber Fricke, Student Writer, The Journal of Gender, Race & Justice

Representative Peter King, who has ties to the IRA (a terrorist organization), held hearings earlier this month to investigate radicalization in the Muslim American community.[i]  Fellow member of the House Homeland Security Committee, Representative Keith Ellison, the first Muslim member of the U.S. Congress, chastised Representative King for going on a witch hunt into the Muslim American community and failing to be concerned with violent radicalization in other communities.[ii] Representative King’s unwillingness to expand the scope of the hearing demonstrates the bigoted nature of his endeavor, as well as his disregard for the safety of our country, particularly if the radicalization is of a group that is more likely to vote Republican.

The rise in membership in white supremacy groups preceded the 2008 election cycle, particularly targeting non-white immigrants. The election of the first black president accelerated membership in white supremacist organizations.[iii] Since the election of President Obama, the Department of Homeland Security released a report warning of a possible rise in right wing domestic terrorism.[iv] However, much of the coverage of the report included criticism that it was targeting “good, patriotic Americans.” So much criticism arose that DHS head, Janet Napolitano backpedaled her support of the report. Nevertheless, the report doesn’t seem to be that uncalled for considering some of the events that followed the release of the report in early 2009[v]:

·         Earlier this week, a cross was burned outside the house of a black family in a predominantly white community in central California. As a hate crime, it is currently being investigated by the FBI.[vi]

·          In February, a man with ties to white supremacist and Neo-Nazi groups was caught before he could execute his plan to set off a bomb at a MLK day parade in Spokane, Washington. [vii]

·          Also, last month, a South Dakota state representative introduced a bill that would make murder of an abortion provider justifiable homicide.[viii]

·         Justifiable homicide is the same reasoning that anti-choice extremists have used in killing abortion providers, such as Dr. George Tiller who was gunned down while at church in May 2009. [ix]

·         Only a month after the murder of Dr. Tiller, a white supremacist murdered a guard at the Holocaust Museum.[x]

·         Furthermore, anti-Muslim rhetoric and hate crimes are astonishingly high. The past couple years have included a plan by a Christian pastor in Florida to burn Korans in in commemoration of  9/11,[xi] bigoted opposition to a community center in New York City because it was being built by Muslims, and various incidents of vandalism and even plots to bomb a mosque.[xii] Finally, earlier this month, citizens and political leaders protested a fundraiser for battered women and homeless persons earlier this month, verbally and physically harassing Muslim attendees, including children, in Southern California.[xiii]

The list certainly isn’t exhaustive, but it is a glimpse into the current climate. The harassment, hate crimes and terror plots against religious minorities, racial minorities, undocumented immigrants, and women are important issues that are a threat to all of America and the future of this multicultural nation. We need to speak out against people like Representative Peter King, who’s harassing a group for political gain, and focus on the rhetoric and mentality that is fueling domestic terrorism, hatred, and the harassment of discrete and insular minorities.  

[i] http://www.thedailyshow.com/watch/thu-march-10-2011/radical-muslim-hearings—-ira-terrorism

[ii] http://ellison.house.gov/index.php?option=com_content&view=article&id=587:congressman-ellisons-testimony-to-the-house-committee-on-homeland-security-as-prepared-for-delivery&catid=36:keiths-blog&Itemid=44

[iii] http://www.louisianaweekly.com/news.php?viewStory=604

[iv] http://articles.cnn.com/2009-04-15/politics/extremism.report_1_extremist-groups-homeland-security-political-climate-fueling-resurgence/2?_s=PM:POLITICS

[v] http://www.democracynow.org/2010/1/11/white_power_usa_the_rise_of

[vi]http://seattletimes.nwsource.com/html/nationworld/2014567728_apuscalifcrossburning.html?syndication=rss

[vii] http://www.salon.com/news/politics/war_room/2011/03/11/spokane_bomb_arrest/index.html

[viii] http://motherjones.com/politics/2011/02/south-dakota-hb-1171-legalize-killing-abortion-providers

[ix] http://www.nytimes.com/2009/06/01/us/01tiller.html

[x] http://www.washingtonpost.com/wp-dyn/content/article/2009/06/10/AR2009061001768.html

[xi] http://www.euronews.net/2010/09/08/florida-koran-burning-stunt-condemned-by-all/

[xii]http://www.aljazeerah.info/News/2010/July/12%20n/Increasing%20Attacks%20on%20Mosques%20in%20the%20USA.htm

[xiii] http://morallowground.com/2011/03/07/douche-du-jour-california-councilwoman-advocates-murdering-muslims-at-islamic-charity-fundraiser/

Andrew Mathern, Student Writer, The Journal of Gender, Race & Justice

On Monday, President Obama issued an executive order calling for the periodic review of individuals detained at Guantanamo Bay.  This issue is confusing to me, and I’m sure to others, so my purpose here is to explain the “Who, What, When, Where, and Why” of this executive order. 

            Who: The order applies only to the 172 individuals currently detained at Guantanamo Bay, Cuba.  The vast majority of these detainees have been held at Guantanamo Bay since 2002.
            What: The order authorizes the creation of a “Periodic Review Board” (PRB) to periodically review the status of detainees.  The PRB is to be composed of one representative each from the Departments of State, Defense, Justice, and Homeland Security, and the Offices of Director of National Intelligence and Chairman of the Joint Chiefs of Staff.  The PRB is to conduct a review that will involve a hearing to determine whether the detainee’s continued detention is warranted “to protect against a significant threat to the Security of the United States”.  At this hearing, the detainee is allowed a government-employee “representative” as well as a private attorney that is not paid for by the government.  At the hearing, the detainee can make a written or oral statement, call witnesses that are “reasonably available”, and introduce evidence.  The review will also involve the PRB examining information provided by the Secretary of Defense regarding the potential danger that the detainee poses to the security of the US.  This information will be provided to the detainee’s government representative.  The detainee’s private lawyer is less able to view this information, and in many circumstances the government will only give “summaries” of this information to the lawyer instead of the underlying information. 

            If the PRB concludes that the detainee does not present a “significant threat”, the PRB is to recommend his transfer to a foreign country, after obtaining assurances that the detainee will not be subject to inhumane treatment. 

            When: The first such review is required to occur within one year for all detainees.  After the initial review, additional “full” reviews are to take place every three years, with “file reviews” every six months. 

            Where: Presumably, these will all be held at Guantanamo Bay, Cuba.  However, the order states that if the detainees are relocated, this periodic review process will continue.   

            Why: Obama has been politically thwarted by critics of his initial plan to close Guantanamo Bay and try many or all of the detainees in civilian courts.  This order reflects his concern that there might be innocent people being held in Guantanamo, as well as his political concern that a civilian trial would lead to significant backlash and the revelation of systematic torture on the part of the American government. 

            There are many serious flaws with this program:

            1. The PRB is composed of members of various government agencies.  Ideally, the PRB should at least have some members that have independent credibility, such as a judge or professor.  The fact that incriminating information is not being provided to any independent party is a due process problem.  If we compare this to a civilian trial, the U.S. government is acting as the judge, prosecutor, and about 2/3 of the defense counsel in this process.  The fact that the decisions of the PRB are to be “consensual” also means dissenting voices will not be heard. 

            2. The detainee will have to arrange for his own private counsel or rely only on the government representative, whose impartiality cannot be guaranteed.  There may be some private counsel willing to take on the case for free, but if not, it will be very difficult for these detainees to obtain counsel since the government does not provide any funds for this purpose.   

            3.  It essentially allows for indefinite detention of suspects deemed security threats.  While the review process provides for transfer to another country if the detainee is deemed not to be a security threat, it is likely that very few will in fact be transferred.  No doubt there has been an informal review process going on for some years concerning these detainees, so the government has already made its mind up whether these people are dangerous.  So, while a few detainees may be transferred under this policy, the likelihood of a large number is very, very low.  The result is therefore indefinite detention, unless they are brought to trial. 

            President Obama should be criticized for his failure to go through with his plan to have full-scale civilian trials of the detainees at Guantanamo Bay.  The PRB plan, while offering at least a scrap of due process rights, fails to live up to the high democratic principles that the international community demands of the United States.  By doing so, Obama has failed to act with principled leadership.  He has succumbed to the will of the majority.  Obama should realize that true leadership often requires one to take the minority position, as well as the courage to act on an unpopular belief.  

Sources:

http://www.whitehouse.gov/the-press-office/2011/03/07/executive-order-periodic-review-individuals-detained-guant-namo-bay-nava