What Libyan Rebels Could Teach Obama About the Rule of Law

Why is the United States entrenching the same kind of military detention system that Arab revolutionaries have given their lives to overthrow?

A Congress that cannot agree on many things that Americans want came together last week to approve something virtually no one was demanding: It decided to give the United States military the authority to arrest and imprison suspected terrorists, potentially even on U.S. soil, and to allow the government the permanent power to detain without trial people suspected of involvement in terrorism. President Barack Obama had threatened to veto the legislation, but now says he will sign it. There are "waivers" in the bill that will allow him -- and future presidents, should they agree with him -- to evade its strictures. But the Congress has nonetheless made the militarization of law enforcement against terrorism the rule in America going forward. Civilian justice is to be the exception -- employed only on those occasions when the president of the United States personally waives the rule.

The strange thing is that Congress is trying to disempower America's institutions of law and order and justice not in the wake of a fear-inducing terrorist attack, or in the face of a threat that is growing in strength. It has done so 10 years after 9/11, after the death of Osama bin Laden, and despite growing evidence that al Qaeda's leadership in Pakistan has been decimated. It has done so even though America's civilian law enforcement institutions have demonstrated time and again their resilience and adaptability to the threat posed by al Qaeda, successfully preventing countless attacks on the U.S. homeland and putting away hundreds of dangerous terrorists, swiftly, surely, and legitimately.

Congress has taken this extraordinary step even though the United States has a long tradition of keeping the military out of domestic affairs, recognizing that young Americans do not join the armed forces so that they can arrest and detain (and risk shooting at) their fellow citizens. It has done so even though no one in the U.S. military asked for this role, and every U.S. government agency engaged in the fight against al Qaeda and the protection of the U.S. homeland urged it not to.

In thinking about this, I remembered an experience I recently had in a country that is facing much more dire circumstances than the United States. Earlier this year in Libya, rebels rose up against Muammar al-Qaddafi's dictatorship, and found themselves in control of large parts of their country. They were taking prisoners -- officials of the Qaddafi regime, enemy fighters, ordinary criminals -- and had good reason to want to detain them at least for a while. But the courts in their part of Libya had closed. Few prosecutors were working. The police had disappeared.  People were being detained, by militia groups, with no due process at all, outside the authority of any law (and sadly that remains largely true today).

So this spring, a number of foreign experts asked the governing council of Libya's rebel movement whether they might enact a law that would allow them to detain suspects without trial, but with basic process, judicial oversight, and clarity about who could be arrested, just until regular courts could start working again. No one was comfortable raising this. Those urging the idea knew they were proposing basically the same thing that they did not want to see adopted by the United States or any other country with an established legal system. But international law does allow for such arrangements during declared states of emergency, to better protect detainees, and this was a real emergency. Unlike the United States, Libya had few functioning institutions. And it was in the middle of an all-out war.

What did the Libyans say? These men, who grew up in a country with no rule of law, who have often been dismissed as coming from a backward, tribal society, said "No, we will not adopt an indefinite detention law." One official told me: "That's what we had for 42 years under Qaddafi -- special courts and procedures, giving the state extraordinary powers. They were always supposed to be temporary. And they never were." The Libyan transitional government has now proposed that the country's new constitution forbid emergency courts.

Libya's rebels have often fallen short of their commitments to human rights, and are far from establishing a proper detention system. But their leaders at least understood this one thing: that it is dangerous to legislate permanent exceptions to normal legal procedures, even to deal with what one may believe, in the heat of the moment, to be a special security threat.

How can Libyans, who have no experience of democratic government, know this, while so many of America's leaders do not? One can only hope that Americans never have to learn it the hard way -- as the Libyans did.



The Cruelty of Kim

Forced breeding, torture, starvation, rape, execution: This is what it’s like to be a political prisoner in North Korea.

For all his infamy, Kim Jong Il got a free pass from the West for his most important legacy: state-sanctioned cruelty.

Now, as his callow third son maneuvers (or is maneuvered by generals) to take over the world's most shuttered state, it is worth reflecting on the staggering breadth of human rights abuses in North Korea, how they were used for so long to keep the lid on the North Korean people, and why many Westerners paid so little attention to what the Dear Leader was getting away with. 

Part of the reason Kim's cruelty was often overlooked was the deceptive power of the images that found their way out of North Korea. On TV and in the newspapers, Kim looked too silly to be a world-class monster. On the Daily Show, Jon Stewart often played him for laughs -- big glasses, puffy hair, zippered jumpsuits. Kim was indeed risible, given enough distance from North Korea and enough ignorance of how he governed.

But it was his nuclear weapons and long-range missiles that most effectively kept his government's grotesque human rights record out of the popular imagination, especially in the United States. Thanks to missile launches and nuclear tests, Kim endlessly made sure North Korea seemed really, really scary. And it worked. Neighboring states and the U.S. government became obsessed with containing his primitive nuclear devices and the missiles that might one day deliver them to Seoul, Tokyo, or San Francisco.

North Korean diplomats would periodically participate in negotiations over nukes and missiles, but if concentration camps ever came up (which rarely happened, as outsiders have never been allowed to visit them), they would throw a fit and storm out.

Inside North Korea, meanwhile, Kim adamantly refused to put away the totalitarian toolkit he inherited from his father, Kim Il Sung, the founder of North Korea. Despite constant and aggressive encouragement from Beijing, the younger Kim never committed his government to the Chinese-style market reforms that probably would have fed his people and revived living standards, while preserving his power and perks. Instead, he stuck with old-school Stalinism. As a result, a preventable famine -- history's first in an urban, industrial state -- killed up to a million people before he reluctantly cracked open the door in the late 1990s and allowed in food aid, primarily from the United States.

Needless privation continues, with a third of the population chronically hungry. North Korea is the only country in the world that insists on using its military to transport United Nations food aid. Aid officials agree that the military steals much of this food. U.S. intelligence reckons that severe malnutrition has caused cognitive impairment for millions and speculates that, even if reform were to come, the capacity of North Koreans to revive their country has been severely set back.

For Kim Jong Il, there was a rationale to state-sanctioned hunger: Desperately hungry people do not have time or energy to cause trouble. U.N. nutrition surveys have shown that malnutrition is much worse in rural parts of North Korea, where the government has relocated citizens considered hostile to the Kim family dynasty.

Although he periodically tried, Kim could not stamp out the scrappy informal markets that sprang up in the 1990s to feed the desperate masses. These markets now feed and clothe most North Koreans, while also accounting for most of the country's jobs. Unable to stop them, Kim's security forces have brutally co-opted the markets, extorting bribes from traders and, in the absence of a living wage from the government, using the money to feed and clothe their families. If these gray-market traders do not pay up, they can be sent to nearby camps where they witness and sometimes are subjected to execution, torture, and starvation, according to surveys of North Korea refugees in China and South Korea. Marcus Noland, a Washington-based economist and coauthor of a report on these camps, said they seem to be "the work of a gang, a kind of ‘Soprano' state."

Camps for "economic" criminals are, of course, a free-market twist on the North's political labor camps, which for half a century have tormented not only the perceived enemies of the Kim family dynasty, but also their children and parents. As Kim Il Sung, the country's founding dictator, said, "Enemies of class, whoever they are, their seed must be eliminated through three generations."

Six of the these camps still exist, according to the government of South Korea, and several are clearly visible in satellite photographs on Google Earth. One is larger than the city of Los Angeles.

I have spent much of the past two years writing about a man named Shin Dong-hyuk, who was born in Camp 14 in the rugged mountains of central North Korea. He is the only person born in a political labor camp who is known to have escaped to the West. Like a piglet in an industrial hog farm, Shin was conceived in 1982 on orders of camp authorities. Guards selected his parents for a "reward marriage," encouraging them to breed, but they were never allowed to live together.

When he was a toddler, guards taught Shin that his parents were enemies of the state. He grew up stealing his mother's lunch and accepted her beatings as the price of a full stomach. Guards encouraged him to snitch on family and friends. At the age of 13, after hearing his mother and brother discuss a possible escape, he rushed from his mother's house to inform camp guards. As result of his snitching, his mother and brother were executed; Shin was forced to watch.

The U.S. government estimates 200,000 people are still in the political labor camps, where they are systematically starved, beaten, raped, and worked to death, according to Shin, other camp survivors, and former guards. Prisoners are taken off to the camps at night for suspected disloyalty to the government without warning and without trial. Guilt by association is enforced. Shin's father was sent to the Camp 14 because two of his brothers fled to South Korea after the Korean War. Prisoners often spend years inside the camps without learning the crimes for which they have been accused. Although the government in Pyongyang denies that the camps exist, North Korean refugees say they are widely known and much feared.

The camps have endured in North Korea because Kim Jong Il needed them to terrify his destitute people into quiescence, especially as word spread of China's prosperity across the border. By that one measure -- intimidation -- the camps have worked rather well, and Kim's death may end up meaning nothing for human rights, if his presumed successor and youngest son, Kim Jong Un, follows the same blinkered course.

In a report earlier this year, Amnesty International analyzed satellite images over the last decade and concluded that construction inside the camps has increased in recent years. Amnesty speculated that the inmate population was growing because Kim Jong Il needed to tighten his grip as he prepared to cede power to his son. Should the Kim dynasty continue to resist the forces of change flooding in from China, the son will need all his family's totalitarian tools in order to keep control.

But if Kim Jong Un (or whoever takes over) makes some state accommodation to Chinese-led economic growth -- allowing companies to take advantage of cheap labor in the North while normalizing trade links with receptive countries -- food shortages and poverty would likely ease. And there would be no need from him to perpetuate his father's extraordinary era of cruelty.