NY Times columnist and former conservative Roger Cohen is thankful today.
It’s Thanksgiving. I’m thankful for many things right now, despite
the stock market, and first among them is the fact that the next U.S.
commander in chief is a constitutional law expert and former law
professor.
Before I get to why, allow me
to add two other reasons for thankfulness. The first is that Barack
Obama is a man of sufficient self-confidence to entrust the critical
job of secretary of state to his former rival, Hillary Rodham Clinton.
She has the strength and focus to produce results.
The second is that he’s a man of sufficient good sense to retain the remarkable Robert Gates as defense secretary.
President
Bush had one overriding criterion in choosing his inner circle:
loyalty. The result was nobody would pull the plug on stupidity. Obama
wants the kind of competence and brainpower that challenge him. The
God-gut decision-making of The Decider got us in this mess. Getting out
of it will require an Oval Office where smart dissent is prized.
But
back to the law, which is what defines the United States, for it is a
nation of laws. Or was until Bush, in the aftermath of 9/11, unfurled
what the late historian Arthur Schlesinger Jr. called “the most
dramatic, sustained and radical challenge to the rule of law in
American history.”
There is no need to rehearse here the whole
sordid history of the Bush administration’s work on Vice President Dick
Cheney’s “dark side:” the “enhanced” interrogation techniques in “black
sites” outside the United States justified by invocation of a “new
paradigm” that rendered the Geneva Conventions “quaint.”
When
governments veer onto the dark side, language always goes murky. Direct
speech makes dirty deeds too clear. A new paradigm sounds bland enough.
What it meant was trashing habeas corpus.
The facts speak for
themselves. This month, almost seven years after detainees began
arriving at Guantánamo Bay on Jan. 11, 2002, a verdict was handed down
in the first hearing on the government’s evidence for holding so-called
unlawful enemy combatants at the U.S. naval base in Cuba.
Yes,
this was the first hearing in a habeas corpus case, so long has the
legal battle been to get to this point, and so stubborn has the
administration been in seeking to keep Guantánamo detainees out of
reach of civilian courts.
Judge Richard J. Leon of Federal
District Court in Washington ruled that five Algerian men had been
unlawfully held at Guantánamo and ordered their release. He said:
“Seven years of waiting for our legal system to give them an answer to
a question so important is, in my judgment, more than plenty.”
Of
the 770 detainees grabbed here and there and flown to Guantánamo, only
23 have ever been charged with a crime. Of the more than 500 so far
released, many traumatized by those “enhanced” techniques, not one has
received an apology or compensation for their season in hell.
What
they got on release was a single piece of paper from the American
government. A U.S. official met one of the dozens of Afghans now
released from Guantánamo and was so appalled by this document that he
forwarded me a copy.
Dated Oct. 7, 2006, it reads as follows:
“An
Administrative Review Board has reviewed the information about you that
was talked about at the meeting on 02 December 2005 and the deciding
official in the United States has made a decision about what will
happen to you. You will be sent to the country of Afghanistan. Your
departure will occur as soon as possible.”
That’s it, the one and
only record on paper of protracted U.S. incarceration: three sentences
for four years of a young Afghan’s life, written in language Orwell
would have recognized.
We have “the deciding official,” not an
officer, general or judge. We have “the information about you,” not
allegations, or accusations, let alone charges. We have “a decision
about what will happen to you,” not a judgment, ruling or verdict. This
is the lexicon of totalitarianism. It is acutely embarrassing to the
United States.
That is why I am thankful above all that the next
U.S. commander in chief is a constitutional lawyer. Nothing has been
more damaging to the United States than the violation of the legal
principles at the heart of the American idea.
As well as closing
Guantánamo, Obama should set up an independent commission to
investigate what happened there, as suggested in a fine recent report,
“Guantánamo and its Aftermath,” from the University of California,
Berkeley. Only then will “deciding officials” become identifiable human
beings who can, if necessary be judged.
Obama should also ensure
that former detainees receive an apology and compensation. An American
official showing up, envelope in hand, at some dusty Afghan compound
and delivering U.S. contrition and cash to a man whose life has been
ravaged by U.S. abuse, will in the long term make the United States
safer.
Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.
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