Politics & Policy

Unlawful Logic

Sweeping and wrong conclusions.

Andrew Sullivan criticizes a piece I wrote for National Review Online, as well as a blog post written by Rich Lowry. Here are several points in response.

1. The Supreme Court’s decision in Boumediene v. Bush was deeply problematic in part because it was a power grab by the Court. It manufactured a Constitutional right for foreign terrorism suspects held outside the United States. Indeed, we are bestowing on unlawful enemy combatants rights that have never before been extended to prisoners of war, who are (unlike terrorists) abiding by international norms. To extend habeas rights to unlawful enemy combatants, the Court broke precedent with the Eisentrager decision — and then attempted to fundamentally reinterpret Eisentrager in order to save itself the task of explaining why it was overruling it. The Court, in other words, wrongly and imperiously carved out responsibility for itself in an area it has never before had jurisdiction — and in the process it invalidated laws (the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) the Court had recently insisted Congress legislate. The Court has, in the words of Chief Justice John Roberts, made Congress “the victim of a constitutional bait and switch.”

2. Critics of the current policy often speak as if there is no recourse for detained suspects short of habeas-corpus rights. In fact, as Justice Roberts wrote in his dissent, the Court’s ruling “strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” It’s perfectly reasonable and morally right to have concerns that innocent people are being detained. But it’s wrong to assume there is no system in place to release the innocent cab driver picked up off the streets of Kabul. In fact our military initially picked up around 10,000 detainees; today we have 270 — 70 of whom have been approved for transfer or release. From the outset the U.S. government has culled down the number of detainees through a series of steps– from initial screening processes in Afghanistan to, later, ones in Guantanamo Bay. Detainees were released within weeks of their coming to Gitmo. In addition, Combatant Status Review Tribunals (CSRT’s) were set up, providing more procedural rights than they would have gotten had they simply gone through a Geneva Convention Article 5 hearing on the battlefield. Since then, hundreds of detainees, classified as unlawful enemy combatants, have been transferred or released to their home countries, with some having returned to the battlefield. There is, in fact, a reasonable middle ground between no recourse for detainees and providing them with unprecedented rights to non-Americans that will, in the decision set forth by Justice Kennedy, create chaos (his decision leaves it to district-court judges to employ ad hoc standards to judge habeas petitions).

3. Andrew and others speak as if what President Bush has done on the issue of detainees is unprecedented in its overreach of executive power and that Bush’s actions ranks as among “the most appalling records of random, brutal injustice ever perpetuated by a president of the United States.” This strikes me as historically misinformed. It overlooks, for starters, what President Roosevelt did with his mass internment of Japanese-Americans and people of Japanese descent during World War II — a violation of rights that President Bush has never approached. (All told around 110,000 Japanese Americans and Japanese nationals were forcibly relocated and interned in “War Relocation Camps;” President Reagan signed legislation apologizing for the policy and which stated that the government’s action was based on “race prejudice, war hysteria, and a failure of political leadership.”)

Jack Goldsmith, former assistant attorney general in the Office of Legal Counsel and author of the excellent book The Terror Presidency (which is even-handed but critical of some of the decisions of the president and his administration), writes this about America’s greatest president, Abraham Lincoln:

In response to the secession crisis that began when Confederate forces fired on Fort Sumter, Lincoln raised armies and borrowed money on the credit of the United States, both powers that the Constitution gave to Congress; he suspended the writ of habeas corpus in many places even though most constitution scholars, then and now, believed that only Congress could do this; he imposed a blockade on the South without specific congressional approval; he imprisoned thousands of southern sympathizers and war agitators without any charge or due process; and he ignored a judicial order from the Chief Justice of the Supreme Court to release a prisoner detained illegally. No president before or since Lincoln has acted in such disregard of constitutional traditions…

4. Andrew writes

Here’s also what is a disgrace: that an American administration knowingly seized individuals who were innocent of any crime, tortured and abused hundreds of them, and lied about it.

I’m not even sure what Sullivan has in mind. But the notion that Bush-administration officials were intentionally issuing orders and seizing innocent people to be picked up off the streets of Afghanistan and Iraq to be tortured and abused strikes me as absurd. There are utilitarian, and well as moral, reasons not to seize and torture people you know to be innocent. That is much different, of course, than saying that innocent people were inadvertently seized, or that innocent people were seized and tortured by individual soldiers. That unfortunately happens in every war, and the latter should be condemned and punished. But Andrew appears to be arguing that this was premeditated and part of administration policy.

5. Andrew asserts this:

More to the point: the United States never tortured and abused Nazi POWs the way we have tortured and abused and murdered many innocent detainees in American custody in this war. This is not slandering America, as this president would have it. It’s the God-honest truth. (Italics in the original.)

The implication is that the United States, as a matter of policy, murdered innocent detainees (why else use the locution “the United States” instead of, say, rogue American soldiers). If this is what Sullivan means, then it is a slander; murdering detainees is, after all, against the law. Have there been individual acts of murder by members of the United States military? Unfortunately there have been, in this war as in all wars, and when people who have perpetrated those crimes are caught, they have been prosecuted. And no detainees have been murdered at Guantanamo Bay.

I would also be interested in exploring in more detail Andrew’s assertion that innocent detainees in American custody in this war have been treated vastly worse than Nazi POWs. The great Eisenhower biographer Stephen Ambrose, who rightly defended Eisenhower against charges by the Canadian writer James Bacque that hundreds of thousands of Germans died because of deliberate neglect, still conceded that “we as Americans can’t duck the fact that terrible things happened. And they happened at the end of a war we fought for decency and freedom, and they are not excusable.”

Terrible things, including the mistreatment of prisoners, happen in war, which is why they are awful things to wage. But to argue that U.S. policy toward unlawful enemy combatants, and even innocent detainees, is unprecedented in its lawlessness or brutality is demonstrably wrong.

One can have strong disagreements with how the Bush administration has prosecuted the war against jihadists and believe, for example, that the administration should have gotten congressional buy-in for its policies long before it did — and still be highly critical of the Supreme Court’s decision.

Andrew Sullivan has, I believe, legitimate and humane concerns about protecting the rights of innocent detainees. He may believe that the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants is not enough. He may also believe that they, as well as terrorists like Khalid Sheikh Mohammed, deserve what they have never before had: habeas rights. I strongly disagree with those positions, but they are defensible. In making his case, though, Andrew is drawing conclusions that are far too sweeping and wrong. His rage at President Bush is causing him to ignore and reinterpret history and make statements that are simply reckless. 

– Peter Wehner, former deputy assistant to the president, is a senior fellow at the Ethics and Public Policy Center.


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