New York Times May 7, 2004
By ANTHONY LEWIS
CAMBRIDGE, Mass.
The question tears at all of us, regardless of party or ideology: How could
American men and women treat Iraqi prisoners with such cruelty - and laugh at
their humiliation? We are told that there was a failure of military leadership.
Officers in the field were lax. Pentagon officials didn't care. So the worst in
human nature was allowed to flourish.
But something much more profound underlies this terrible episode. It is a
culture of low regard for the law, of respecting the law only when it is
convenient.
Again and again, over these last years, President Bush has made clear his
view that law must bend to what he regards as necessity. National security as he
defines it trumps our commitments to international law. The Constitution must
yield to novel infringements on American freedom.
One clear example is the treatment of the prisoners at Guantánamo Bay, Cuba.
The Third Geneva Convention requires that any dispute about a prisoner's status
be decided by a "competent tribunal." American forces provided many such
tribunals for prisoners taken in the Persian Gulf war in 1991. But Mr. Bush has
refused to comply with the Geneva Convention. He decided that all the Guantánamo
prisoners were "unlawful combatants" - that is, not regular soldiers but spies,
terrorists or the like.
The Supreme Court is now considering whether the prisoners can use American
courts to challenge their designation as unlawful. The administration's brief
could not be blunter in its argument that the president is the law on this issue:
"The president, in his capacity as commander in chief, has conclusively
determined that the Guantánamo detainees . . . are not entitled to
prisoner-of-war status under the Geneva Convention."
The violation of the Geneva Convention and that refusal to let the courts
consider the issue have cost the United States dearly in the world legal
community - the judges and lawyers in societies that, historically, have looked
to the United States as the exemplar of a country committed to law. Lord Steyn,
a judge on Britain's highest court, condemned the administration's position on
Guantánamo in an address last fall - pointing out that American courts would
refuse even to hear claims of torture from prisoners. At the time, the idea of
torture at Guantánamo seemed far-fetched to me. After the disclosures of the
last 10 days, can we be sure?
Instead of a country committed to law, the United States is now seen as a
country that proclaims high legal ideals and then says that they should apply to
all others but not to itself. That view has been worsened by the Bush
administration's determination that Americans not be subject to the new
International Criminal Court, which is supposed to punish genocide and war
crimes.
Fear of terrorism - a quite understandable fear after 9/11 - has led to harsh
departures from normal legal practice at home. Aliens swept off the streets by
the Justice Department as possible terrorists after 9/11 were subjected to
physical abuse and humiliation by prison guards, the department's inspector
general found. Attorney General John Ashcroft did not apologize - a posture that
sent a message.
Inside the United States, the most radical departure from law as we have
known it is President Bush's claim that he can designate any American citizen an
"enemy combatant" - and thereupon detain that person in solitary confinement
indefinitely, without charges, without a trial, without a right to counsel.
Again, the president's lawyers have argued determinedly that he must have the
last word, with little or no scrutiny from lawyers and judges.
There was a stunning moment in President Bush's 2003 State of the Union
address when he said that more than 3,000 suspected terrorists "have been
arrested in many countries. And many others have met a different fate. Let's put
it this way: They are no longer a problem for the United States."
In all these matters, there is a pervasive attitude: that to follow the law
is to be weak in the face of terrorism.
But commitment to law is not a weakness. It has been the great strength of
the United States from the beginning. Our leaders depart from that commitment at
their peril, and ours, for a reason that Justice Louis D. Brandeis memorably
expressed 75 years ago.
"Our government is the potent, the omnipresent teacher," he wrote. "For good
or ill, it teaches the whole people by its example. Crime is contagious. If the
government becomes a lawbreaker, it breeds contempt for the law; it invites
every man to become a law unto himself."
Anthony Lewis is a former Times columnist.
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