Right Makes Might

Gary Farber recommended this great article in TNR on Guantanamo by Spencer Ackerman and I’m passing on the recommendation.

Ackerman breaks down all the reasons why Guantanamo is counterproductive to our national security as well as why it is an immoral, legal and strategic mistake of epic proportions. He very clearly shows how the administration’s stubborn “my way or the highway” philosophy has put it at odds with virtually every other country and actually impeded the detention of dangerous people. It seems that the rest of the world isn’t willing to throw its constitutions out the window to accomodate us just because we’ve thrown out ours. And the administration refuses to change anything, including our ineffectual torture techniques and endless detention policies.

Ackerman believes that this is because the entire scheme is in service of one overriding concern:

The Bush administration has adopted this radical approach because it is defending the idea that the Constitution empowers the president to conduct war exclusively on his terms. A series of memos written by the Justice Department’s Office of Legal Counsel in 2002 effectively maintained that any law restricting the president’s commander-in-chief authority is presumptively unconstitutional. (When GOP Senator Lindsey Graham recently quoted to Pentagon lawyer Daniel Dell’Orto the inconvenient section of Article I, Section 8, granting Congress the authority to “make rules concerning captures on land and water,” he farcically replied, “I’d have to take a look at that particular constitutional provision.”) Last month, when some GOP senators tried to bar “cruel, inhuman, or degrading treatment” of detainees in an amendment to the 2006 defense bill, the White House sent them a letter threatening to veto any attempt to “restrict the President’s authority to protect Americans effectively from terrorist attack and bring terrorists to justice,” and Vice President Dick Cheney warned senators against usurping executive power. For good measure, the White House instructed the Senate leadership to pull the entire half-trillion-dollar bill from the floor, lest the offending language within it pass.

It would not be difficult to solve the indefinite-detention problem: Pass a law allowing for a circumscribed period in which officials interrogate the detainee and accumulate evidence before bringing charges against him. This is how it works in countries like Great Britain and Israel, both mature democracies that have fought terrorist threats militarily and legally for decades. But the administration has strongly resisted any move to introduce legal protections to Guantánamo Bay. When the Supreme Court ruled last year that Guantánamo inmates could bring habeas corpus challenges to their detentions in federal court–settling the question of whether detainees had recourse to the U.S. legal system–the Justice Department adopted the bewildering position that, once detainees file their claims, they possess no further procedural or substantive legal rights at all, an absurdity to which the administration is sticking.

That’s not all. Before a Senate panel last month, Dell’Orto argued that Congress shouldn’t create a statutory definition of the term “enemy combatant,” since the administration needs “flexibility in the terminology in order to … address the changing circumstances of the type of conflicts in which we are engaged and will be engaged.” The very next week, before an appellate court panel, Solicitor General Paul Clement, arguing for the continued detention without charge of American citizen and suspected Al Qaeda terrorist José Padilla, explained what the administration has in mind for its “flexible” definition. Federal appellate Judge J. Michael Luttig, a Bush appointee, noted that, since Padilla was arrested not on an Afghan battlefield but at a Chicago airport, the administration’s discretion to detain an American citizen ought to be fettered, “unless you’re prepared to boldly say the United States is a battlefield in the war on terror.” Clement immediately replied, “I can say that, and I can say it boldly.” In essence, the administration is claiming authority to detain anyone, captured anywhere, based not on any criteria enacted by law but rather at the discretion of policy, and to hold that individual indefinitely.

That position–that the war on terrorism requires executive latitude at odds with hundreds of years of law–has animated every single step of the administration’s approach to the war. It’s why Bush has kept nato allies at arm’s length while simultaneously trumpeting their absolute necessity to the defeat of Al Qaeda. It’s why he didn’t just oppose the creation of an independent 9/11 Commission to investigate the history of counterterrorism policy, he also argued it would be an unacceptable burden on his prosecution of the war. And it’s why he’s blasted any move by the courts to exercise oversight of the war as a dangerous judicial overreach: When a district court judge last year challenged the constitutionality of the administration’s military commissions for the trial of enemy combatants, the Justice Department “vigorously disagree[d],” as a spokesman put it, and contested the ruling until the commissions were reinstated on appeal last month. For the administration, its expansion of executive power is synonymous with victory in the war–regardless of the real-world costs to the war effort.

This pretty much says it all. President Bush having unchecked power is synomymous with victory. (There can be no doubt that this executive power would not apply to a Democratic president in similar circumstances.)

Once again, every loss becomes a win. Every mistake means that they must dig in all the more deeply, because to not do so would be to admit they were wrong. And if they were wrong, the terrorists will have won.

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