The War on Terror and the Rule of Law
By Kevin Croke
The Supreme Court's June 29 ruling in the Hamdan v. Rumsfeld military detainee case is being widely and rightly hailed as a major step toward bringing the Bush administration's prosecution of the war on terrorism in line with the rule of law. In a 5-3 majority opinion, the Court repudiated the administration's plans to try Guantanamo detainees in front of military commissions. The decision echoed a similar rebuke issued by the Court in its June 2004 Hamdi v. Rumsfeld ruling, which affirmed the right of U.S. citizens being held as enemy combatants to appeal their detentions. In between, Congress passed John McCain's anti-torture amendment. Together, these judicial and legislative actions have served to restrain the administration from exercising unfettered executive power in the war on terrorism.
While the Hamdan case itself is important, what's really at stake in all of this has less to do with any specific legal details or procedures than it has to do with broad constitutional, moral, and strategic issues. The war on terrorism has given rise to a series of difficult policy questions, all involving some manner of tradeoff between security and individual rights. These questions are especially acute in the cases involving detainees, because they fall into an unusual legal vacuum: They're neither American citizens, who must be given a trial or released, nor traditional prisoners of war, who typically are detained without appeal until the end of a conventional war.
It's certainly understandable that in the immediate aftermath of Sept.11, the White House took an expansive view of executive power, and a narrow view of these detainees' rights. Fighters captured on the battlefield in Afghanistan needed to be interrogated for information on terrorist attacks, not read their Miranda rights and given a lawyer. But almost five years later, the situation is very different. There has been plenty of time for the administration to propose a new legal regime tailored to the new reality of war against stateless terrorists. But the administration appears to be uninterested, preferring to base its policies on the radical claim that no new rules are needed, because in war the president's power is absolute. According to the White House, the only rules that apply to detainees are the ones that the administration makes. The president's power should be unchecked; Congress and the courts should have nothing to say.
Not only have the president's advisors put forward this implausible theory of executive branch omnipotence, but the administration has applied it with extreme recklessness. The adoption of torture as a tool of interrogation policy, for example, flows from the idea that the traditional limits on war conduct are moot. The creation of detention sites expressly designed to be out of reach of Congress and the courts -- such as Guantanamo Bay, the Bagram prison in Afghanistan, and the CIA-run "black sites" in eastern Europe -- is another reflection of this maximalist attitude. One outcome has been "hundreds of cases of abuses of prisoners ... including dozens of homicides," according to a recent Washington Post editorial. A second outcome has been the well-documented collapse in America's international prestige over past several years.
It didn't have to be this way. There's no reason why policy in the area of detainee treatment couldn't have followed the same pattern as, say, the Patriot Act. In that instance, the administration, seeking more stringent laws, worked with Congress to craft a new policy. While the measures have not been immune to criticism, it is telling that they were reauthorized by large margins earlier this year, and have been granted broad deference by the courts.
Conservative pushback to the Hamdan decision will likely focus on the idea that the Court's decisions are giving special rights or protections to al-Qaeda members. Yet the Court did not mandate specific protections; it simply put the burden on the executive to justify major departures from existing practice. There is nothing to stop Congress from doing what it should have done in the first place; that is, create a new legal framework for detainees that balances the need for some measure of due process with the government's legitimate security concerns.
The case for a new policy is both principled and pragmatic. Giving the executive branch a blank check does not comport with American understanding of separation of powers. Nor, to put it mildly, has it produced good policy. Unchecked power would be dangerous even in the hands of an administration with a sterling reputation for competence, willingness to entertain critical views, and ability to change course in the case of policy failure. With this White House, it's practically a guarantee of bad policy.
What's more, it's simply not the case that by adhering to the rule of law, America is weakening itself in the fight against terrorism. This becomes clearer when the struggle against Islamic extremism is viewed as a military, police, and intelligence campaign against a relatively small amount of active terrorists, as well as a much broader ideological and political struggle for the sympathies of Muslims around the world. America's most powerful weapon in this ideological struggle is its reputation as a democratic, law-abiding, civilized polity. In the end, only Muslims themselves can marginalize jihadist ideology. So winning the battle for world opinion must be a central goal in the war on terrorism, not a peripheral matter.
In addition, U.S. attempts to promote democracy ring particularly hollow in the shadow of Abu Ghraib and Gitmo. As Larry Diamond and Michael McFaul argue in PPI's recent book With All Our Might, "We cannot inspire others to respect human rights and embrace democratic principles if our own government officials do not do the same ... [Abuses like Abu Ghraib] serve as an albatross to any American -- from President Bush to the junior embassy officer in Bahrain -- trying to press for greater freedom abroad."
While the administration has shown little interest in fixing this key policy failure, Congress should step up -- as it did last year on the torture issue -- to force the administration's hand, and fix one of the most damaging failures (all the more devastating for being self-imposed) of the war on terrorism.
Kevin Croke is a foreign policy fellow at the Progressive Policy Institute.