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 Washington Post, the compromise actually allows President Bush to decide what is legal and what is not. It bars certain practices, apparently, and, pathetically in my view, tries to distinguish between acceptable and the unacceptable levels of pain and mental distress which interrogators may apply. But it also apparently gives the President the right, explicitly, to decide what is allowed and what isn’t, although it requires him to publish his opinions. This will, of course, make another “signing statement” unnecessary, since the Congress for the first time is explicitly giving the President the right to decide what is legal and what is not, but how anyone can discount the appalling propaganda disaster that the publication of such guidelines will represent is utterly beyond me. Washington has become such a self-contained region that no one involved seems to have thought about the broader diplomatic implications (but we have good information that the Vice President, in particular, would pronounce those as “not the issue.”)
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 Guantanamo, and lock them up without trial? Does the public safety actually require this? Is it, rather, being endangered by the incarceration of more than a few men who just happened to be within reach of a bounty hunter at the wrong time, and whose friends and relatives will not forget? All these are critical questions but they are of the kind that the Supreme Court prefers not to address.
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 Afghanistan and Iraq, however, is that simply overthrowing them will not extend effective and cooperative authority over their territory. In any case, I remain convinced that to arrogate the right to overthrow foreign governments to one’s self is incompatible with any concept of lasting international order.
The people and leadership of the United States desperately need to think a little harder about how we got here. However just our own institutions and goals may be (and they are never as noble as some of us believe), we have not found a recipe for ending global political conflict. In the Middle East and Latin America millions of men and women are inevitably rebelling against our power and our values. And, by outstripping the rest of the world in military capability, we and our allies have made it impossible for anyone to challenge us on a traditional battlefield. Because other face a choice of submission on the one hand or unconventional war, including terrorism, on the other, Americans seem to conclude that they should automatically submit. Unfortunately for us they do not agree.
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 Iran’s nuclear program, and Chavez’s insults against Bush.
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 Third World (an idea dear to the heart of American conservatives, actually, for many decades.) He specifically attacked the effects of neoliberal globalization and called for something new. This year, however, made these points more for dramatic effect, recommending Noam Chomsky to his audience, and spent a great deal of time with personal attacks on “the devil,” President Bush. And, he appealed over the head of the President to the American people:
“The president then -- and this he said himself, he said: "I have come to speak directly to the populations in the Middle East, to tell them that my country wants peace."
“That's true. If we walk in the streets of the Bronx, if we walk around New York, Washington, San Diego, in any city, San Antonio, San Francisco, and we ask individuals, the citizens of the United States, what does this country want? Does it want peace? “They'll say yes.
“But the government doesn't want peace. The government of the United States doesn't want peace. It wants to exploit its system of exploitation, of pillage, of hegemony through war.
“It wants peace. But what's happening in Iraq? What happened in Lebanon? In Palestine? What's happening? What's happened over the last 100 years in Latin America and in the world? And now threatening Venezuela -- new threats against Venezuela, against Iran?”
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 Iran and Syria, did exactly the same thing.
“To the people of Iran: The United States respects you; we respect your country. We admire your rich history, your vibrant culture, and your many contributions to civilization. You deserve an opportunity to determine your own future, an economy that rewards your intelligence and your talents, and a society that allows you to fulfill your tremendous potential. The greatest obstacle to this future is that your rulers have chosen to deny you liberty and to use your nation's resources to fund terrorism, and fuel extremism, and pursue nuclear weapons. The United Nations has passed a clear resolution requiring that the regime in Tehran meet its international obligations. Iran must abandon its nuclear weapons ambitions. Despite what the regime tells you, we have no objection to Iran's pursuit of a truly peaceful nuclear power program. We're working toward a diplomatic solution to this crisis. And as we do, we look to the day when you can live in freedom -- and America and Iran can be good friends and close partners in the cause of peace.
“To the people of Syria: Your land is home to a great people with a proud tradition of learning and commerce. Today your rulers have allowed your country to become a crossroad for terrorism. In your midst, Hamas and Hezbollah are working to destabilize the region, and your government is turning your country into a tool of Iran. This is increasing your country's isolation from the world. Your government must choose a better way forward by ending its support for terror, and living in peace with your neighbors, and opening the way to a better life for you and your families.”
Now in my opinion it was not wise for Presidents to speak in such terms to the people of the Soviet Union during the Cold War, for the simple reason that diplomacy, in my opinion, consists in protecting one’s own country and its values and interests in a world in which many people, inevitably, do not share them. But at least Presidents Truman, Eisenhower and Reagan could argue that the stakes demanded such language, since the Soviet Union was a worldwide competitor for power and influence that posed a genuine threat to the United States. It is demeaning, in my opinion, for an American President to be publicly calling to account the governments of relatively weak and poor nations like Syria and Iran—for that is what they still are. The threat we face is not in proportion to our rhetoric (and President Bush acknowledges that, in effect, by refusing to mobilize the human and financial resources, much less the diplomatic ones, that a worldwide threat would really call for.)
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.