The Corner

Re: So What?

I often find myself in disagreement with Andrew Sullivan, but I like him and generally admire his willingness to take on the tough issues. This performance, though, is as scurrilous as it is unserious.

First, the administration does not “reserve the right to torture” anyone. Torture is against the law, and even if it weren’t the administration has said, repeatedly, that it won’t be countenanced — it will be prosecuted. There are many of us — including no less a Bush-basher than Alan Dershowitz — who think a total ban on torture is a bad idea. But the administration has shown no stomach for such a discussion. It says torture is prohibited. Period.

What the administration has reserved the right to do — or, better, what congress reserved the right of the United States to do when it enacted significant reservations in its 1994 ratification of the UN Convention on Torture and Cruel, Inhuman and Degrading Treatment (UNCAT) (reservations that — as I mentioned this week — the McCain Amendment preserves) — is coercive interrogation. That is, forms of physical and mental pressure that fall short of torture (which, as a matter of law, is limited to the infliction of severe physcial or mental suffering).

There are many people in the so-called “international community” who interpret UNCAT to ban such methods. That, however, is not the construction this country placed on the treaty when it was ratified. Had it been, there would be absolutely no point in the McCain Amendment’s unwise effort to elevate the Army Field Manual to the status of binding statutory law. Sullivan may not like that state of affairs — there are a lot of things I don’t like either. But it’s irresponsible to pretend that the world simply is as you would have it, and that anyone who is dealing with it as it actually is must be guilty of monstrous crimes.

Finally, the inclusion of American citizens in his diatribe about the detention of 4000 people without charge is utterly disingenuous. Since 9/11, there have been many American citizens detained, but almost all of them have been charged in the criminal justice system — where they had notice, counsel and trials. Exactly two — Hamdi and Padilla — have been held as enemy combatants without charge. But both have had lawyers and elaborate court proceedings. After getting to the Supreme Court, Hamdi’s detention was ended in a deal that saw him repatriated (he is no longer a citizen). Meanwhile, Padilla’s plight is now headed to the Supreme Court for the second time. The suggestion that American citizens are being massively rounded up and confined to a legal black hole with no due process is absurd.

In the history of American wars, we have always taken prisoners. Most of them have unremarkably been held without charge since the point of holding them is not to charge them but to prevent them from rejoining the war. They have unremarkably been held without a definite date for the concusion of their detention because, at the time of capture, we don’t know when wars will end (a German soldier taken prisoner in 1942 had no idea whether the Second World War would end in 1943, 1945, 1955 or any time in between). Why that state of affairs should suddenly, in this war, be deemed some kind of monumental abuse is mystifying.

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