- Last week, the President signed into law a Defense Appropriation
bill that, like many pieces of Congressional legislation, contained important,
but non-budget, riders. One was the McCain Amendment that, on its face
at least, made torture of prisoners by US officials or agents illegal anywhere
in the world. A second, the Graham-Levin Amendment denied the writ of habeas
corpus to most of the prisoners held by the US in Guantanamo, Cuba. One
can question why, in a country allegedly governed by the rule of law, the
first was necessary. But the second, Graham-Levin, needs to be challenged
on constitutional grounds.
-
- Those two amendments, plus the President's signing statement--quietly
posted on the White House website--add up to a very unpromising future
for any prisoner of the United States who is not a US citizen charged with
an ordinary crime. The situation, as others have pointed out, is rendered
especially complicated by the Pentagon/White House invention of the class
called "enemy combatants", a designation that never existed nor
has been defined anywhere in US law. This category has been used systematically
to deny constitutional rights to anyone so designated. It has defined a
sub-species of people who are less than equal.
-
- However, equally important is the blurring of presidential
responsibility under US law, along with his obligations under ratified
treaties that have the force of law. The signing statement said: "The
executive branch shall construe" (implicitly the McCain and Graham-Levin
amendments) "in a manner consistent with the Constitutional authority
of the President," (specifically his authority) "as Commander
in Chief." Article II, Section 2 of the Constitution designates the
President as Commander in Chief, but it says nothing to define that authority
or to exempt the President from compliance with US laws. In fact, the key
reference in the Constitution to the President's responsibility under law
is in the oath of office to "preserve, protect and defend the Constitution
of the United States."
-
- The Graham-Levin Amendment on its face is a violation
of the Constitution, one that the Congress passed and the President signed
into law. First, it suspends the right of habeas corpus in cases of many
detainees in Guantanamo and maybe others. The Constitution says specifically:
"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." Second, the amendment does not assert that either condition exists,
and it does not refer to any Executive or Judicial finding to that effect.
It simply bypasses the amendment procedure, established in the Constitution,
that requires approval by both houses as well as ratification by three-quarters
of the states. No mere vote of the House and Senate and signature by the
President can substitute for the prescribed steps. A clear case exists
that the Graham-Levin Amendment is unconstitutional.
-
- But these examples really show that regard for the rule
of law is in decay in the United States Congress and the White House. Recent
cases show that the rule of law fares no better in Britain. Since 9/11
almost 900 people have been arrested under Britain's Terrorism Act, while
fewer than 25 have been convicted of offenses covered by the act. The procedure
in both the US and Britain has one-upped the Code Napoleon: Under that
Code, you are guilty until proven innocent. Under the anti terrorism procedures
developed in the US and Britain, if you are suspected and caught, you are
imprisoned, and the matter may never come to trial.
-
- In this battle, the terrorists are winning in a strange
way: The manner of their confinement is demonstrating that the rule of
law in the west is a façade that breaks down under threat or challenge.
It indeed is proving more fragile than we might have imagined in our worst
Orwellian nightmares. The saddest part of it is that both the US and Britain
have lost any moral authority they might have had in the battle against
terrorism.
-
- Both struggle with the basic haystack dilemma: To be
sure you find the needle you have to destroy the haystack. Both fail to
perceive that this haystack--the core system of civil liberties and human
rights--is far more precious than any needle they might find. The needle
itself is worthless if found in this way.
-
- Two aberrations appear to be driving this moral collapse
in the west: One is the constant fear of politicians of making a mistake--in
this case failing to detect and stop a terrorist incident. The other appears
to be loss of faith in the strength of western institutions to deal with
the terrorist threat. These gigantic failures of will lead to the adoption
of the terrorists own methods in the attempt to stop them. Those failures
in turn are compounded by reliance on military force to combat terrorism
when economic, social and political advances are the correct tools.
-
- The combination of these three failures, when applied
globally, provides a colossal terrorism generator. It injures and angers
a growing number of people in a widening array of places where the people
are not consulted and elites are complicit in extra-legal efforts to find
and weed out the "terrorists".
-
- As the evidence of those failures accumulates, the urge
to find remedies intensifies. The notion that we can get at the roots of
the problem if only the right people will talk takes over. Fear that the
next attack is already well-formulated and detailed in somebody's mind
provokes torture and harsh confinement for anyone who is caught. More people
are subjected to extraordinary rendition; more people are tortured and
confined under extreme conditions in remote, black locations.
-
- But the strategy is not working. In the places where
the alleged War against Terrorism is most visibly active - Iraq, Afghanistan,
Palestine, Israel - virtually three quarters of the world's terrorism is
occurring day in and day out. Bombing, strafing, confining, torturing are
not solving the problem. What we are getting for this is another generation
of spent warriors, people who are wounded, traumatized and shamed by involvement
in this process, but who know, down deep, that the strategy is a failure.
It is destroying them, as the terrorists the strategy generates may destroy
us.
-
- Fear of failure is keeping our leadership from being
rational about this problem. It is time they stood back and truly looked
at what is happening. They must look at what is happening to our troops.
They must appraise what is happening to the people in the most affected
countries. They must assess the damage to the American image, reputation,
institutions, and prospects for the future. They must look at the damage
to civil liberties and human rights. And they must be fearless in taking
on board the results of this analysis. The strategy mapped by the Project
for the New American Century is a colossal failure. There is much real
and potentially rewarding work to be done to overcome the common causes
of terrorism, and it is not being done. It is time to back off, regroup
and, if possible, start over.
-
-
- **********
-
-
- The writer is a retired Career Foreign Service Officer
who served in senior diplomatic posts abroad, including Economic/Commercial
Counselor in Manila and Consul General in Sao Paulo. In Washington he served
as Deputy Director of the Office of Counterterrorism and as Chairman of
the Department of International Studies of the National War College. He
is author, co-author and editor of five books, including a collection of
essays titled _A World Less Safe_ now available at Amazon.com and Booksurge
Publishing. He is a regular columnist on rense.com, and he will welcome
comments at wecanstopit@charter.net.
|
