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Dead Constitution See other Dead Constitution Articles Title: Calling the Kettle Black http://writ.lp.findlaw.com/mariner/20080423.html ---- Calling the Kettle Black By JOANNE MARINER ---- Wednesday, Apr. 23, 2008 "It's Malaysia's Guantanamo," the woman told me. I was visiting Kuala Lumpur, Malaysia, last week, to talk to an activist from a local human rights group. The group, SUARAM, has been leading a fierce campaign to abolish Malaysia's Internal Security Act (ISA), a law under which more than 70 men are currently held in preventive detention. Some of the men are suspected of belonging to Jemaah Islamiyah, a militant Islamist group responsible for terrorist bombings in Bali and elsewhere. Others are accused of common crimes like forgery. What they have in common--and what links them to detainees at Guantanamo--is that they are being held in long-term detention without charge or trial. In a different era--back in the pre-Guantanamo, pre-"war on terror" days--the Clinton Administration would occasionally criticize Malaysia's reliance on the ISA. Now such concerns have largely been forgotten. What counts, for the U.S. government, is that Malaysia is a reliable ally in fighting terrorism. Just hours ago the U.S. ambassador to Malaysia lauded the two countries' "shared cooperation" on counterterrorism. "We have been impressed and gratified that Malaysia wants a leadership role in this arena," he said. First Give a Fair Trial to the Detainees at Guantanamo ... On the rare occasion that U.S. officials venture to look critically at Malaysia's detention policies, the local authorities have a ready response: Guantanamo. Last December, the Malaysian government arrested and detained five Hindu rights activists under the ISA, in a blatant attempt to intimidate the activists from pressing claims of racial discrimination. The U.S. State Department responded critically to the detentions, though it did not condemn them directly. Without mentioning the Internal Security Act, or even referring explicitly to the question of detention without trial, State Department spokesman Sean McCormack expressed concern for the legal rights of the detainees. It was the U.S. government's expectation, he said, that the detainees "would be provided the full protections under Malaysian law, that they would be given due process, that they would be accorded all the rights accorded to any other citizen, and that this [would] be done in a speedy and transparent manner." The Malaysians' reply was swift. "Can they [the United States] first of all give a fair trial to the detainees in Guantanamo Bay?" asked Deputy Prime Minister Najib Razak. "We'll only respond if they do so." Guantanamo and Kamunting While their purported concern for detainees at Guantanamo was opportunistic, at best, the Malaysian authorities have a point. No country has a perfect human rights record, and it would be folly to insist that only countries with outstanding records have the moral standing necessary to point out others' shortcomings. Still, it is not easy for the U.S. government--as it fights to prevent detainees at Guantanamo from challenging their imprisonment in court--to give convincing lessons to Malaysia on these issues. Guantanamo holds nearly four times the number of prisoners as Malaysia's Kamunting Detention Center, the prison in which the country's ISA detainees are held. While a few ISA detainees have been held for up to six years, more than 100 prisoners at Guantanamo have been held since early 2002. Detainees in both places face secret evidence, an overall lack of due process, and, as a result, arbitrary detention. The problems--and even the justifications that the U.S. and Malaysian governments invoke to defend each system--are similar. It is no more convincing for the Malaysian authorities to call on the United States to close Guantanamo--as Malaysia's Prime Minister Abdullah Badawi did in 2006--than it is for the United States to express concern about Malaysian detention practices. A Malaysian at Guantanamo Last year, Mohd Farik Bin Amin, one of two Malaysian detainees held at Guantanamo, was granted an administrative hearing. One of the questions he asked was whether the Malaysian government could demand his extradition. It's not much of a choice: indefinite detention at Guantanamo or indefinite detention under the ISA. Hopefully, in both countries, fairer options will soon emerge. Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terror" are available in FindLaw's archive.
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