Readers of last week’s post will understand my enormous disappointment at the deal that appears to have been reached between the Administration and leading Republican Senators (Democrats, of course, played no role at all) over the rights of detainees seized by the CIA. It is extremely difficult to tell from the major media what is in the compromise, and I haven’t seen a text, but it seems to embody some rather frightening hypocrisy about torture, while raising questions one two of the most basic principles of US and international law over the last few centuries.
To begin with, according to the
Now the Senators seem to have done a little better on the issue of trials for suspected terrorists, who will have the right to see at least summaries or redacted versions of any classified evidence against them. (While I hardly regard that as a solution of the problem, it is a step forward.) However, the law does not give that right to detainees simply asking for their release, and it forbids detainees from going to federal court to ask for a writ of habeas corpus. They must rely on a special tribunal. Here is where matters become rather interesting, because the legality of such a step under the constitution leads us into deep waters of national and international law.
Article I of the Constitution—significantly, the article defining the powers of Congress—states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Congress, in short, has the power to authorize unlimited detention of suspects (although as I have noted before, during the Civil War the Congress gave detained suspects the right to an almost immediate hearing.) Thus the question, in the first instance, is whether we face a situation falling under that provision. September 11 was certainly an invasion, of a kind, but does that authorize us to detain people literally anywhere in the world, bring them to
But in turn, they raise the issue of exactly what we are claiming to fight the so-called “war on terror,” namely, the suspension of the idea of national sovereignty. No government has the right to protect its own citizens, much less aliens within its borders, if we have decided that they are terrorists. Our “writ” runs all around the world. And indeed, under the Bush doctrine, any government that cannot, or will not, stop terrorists from operating is liable to be overthrown. In principle one can make a case that such governments are failing to carry out their international obligations. What we have found in
The people and leadership of the
I was struck, by the way, by a remarkable item in Israeli newspapers last week, about the impending trial of two Lebanese men accused of being Hezbollah terrorists who were seized on a Lebanon battlefield. Their attorneys are arguing that they should be treated as soldiers and prisoners of war, since they were defending their village. I emailed an Israeli human rights group to ask whether Arab terrorist suspects are tried in normal courts with full right of counsel, such as these to men seem to be enjoying. Unfortunately the group simply referred me to another group which did not answer. But it seems that Israel, which has suffered more from terror than the United States, still does not feel it necessary to eliminate all legal protections for men and women that it chooses to charge. (I would be grateful for any more information on this point.)
It has not occurred to anyone, apparently, that we really should be engaging in the broadest possible international negotiation to set generally agreed-upon rules on how to find, arrest, detain, and punish terrorist groups. This would, in my opinion, be far more effective than relying on ourselves and a few more or less savory friends, and it would allow us once again to step forward as the leading defender of international human rights, a position we have now almost totally forfeited. It would be a most promising step away from our current isolation. Perhaps some Democratic hopeful might think about it.
Our promotion of international anarchy was once again apparent in President Bush’s speech to the UN. Today my local paper had a column by Marianne Means of the Hearst chain about the speeches by Bush, Hugo Chavez, and Mahmoud Ahmadinejad. She begins by describing President Bush’s oration as “an undistinguished effort, and quickly forgotten,” and moves on to the “real fireworks.” Then she turned to Ahmadinejad’s questioning of the holocaust and pledge to go forward with
Chavez's speech is a bit of a shock because only one year ago, he gave an address which, while certainly unwelcome to the ears of the American government, was actually an interesting attempt to set the world on a different path. He called for the reform on the United Nations, including the construction of a new headquarters somewhere in the
“The president then -- and this he said himself, he said: "I have come to speak directly to the populations in the
“That's true. If we walk in the streets of the
“But the government doesn't want peace. The government of the
“It wants peace. But what's happening in
Chavez’s speech was insulting, as it was meant to be, and most unlikely to do anything to move the world I a more hopeful direction. It obviously is contributing to the polarization of opinion around the world. But unfortunately, President Bush, in some of his statements about
“To the people of
“To the people of
Now in my opinion it was not wise for Presidents to speak in such terms to the people of the
The collapse of the Republican center on the torture issue is a sad day, but it is an opportunity for the Democratic Party. The Administration’s policies do not merely betray our values; they do not work, either. Perhaps some one will take up this opportunity.