We are asked to consider providing advice to the new American president who will be sworn in on January 20, 2009. The Bush Administration has pursued a war on terror for over five years. On the basis of its track record, what changes should now be considered?
This question calls for consideration of a wide variety of issues, but I’m going to focus on just one: reputation. In the last six years, America has suffered a very grave series of reputation setbacks. America is now at the lowest point it has ever occupied in the world’s esteem. Public opinion polls around the world show the country at levels of popular dislike and distrust which, seven years ago were almost unimaginable. The countries in which America is still held in more or less favorable odor are very few–Nigeria, Poland, India and the Philippines, for instance–and even there the numbers are not good by historical standards, and they are falling. The numbers among our core historical allies, in Europe, North America and East Asia have deteriorated to the point where they will unavoidably dampen cooperation, including in counter-terrorism efforts. Consider for instance Turkey, once a key strategic ally for the U.S. I was in Istanbul working on a transaction some eight years ago when Bill Clinton visited the city for the OSCE Summit. I remember that he was received by admiring throngs everywhere he went. The U.S.-Turkish alliance seemed locked in for a generation and public confidence in America unflappable. But today, public approval of President Bush in the world’s most successful democracy with a Muslim population is so low that it is within the margin of error for the poll. In other words, it may be zero. This is a staggering feat of reputation-sabbotage.
Should we be concerned about this? In my mind the answer is clear. We are creating a progressively more dangerous world–more dangerous for everybody, but especially for Americans. In some corners in America, concern about world opinion will be dismissed with sneers. At some point, a commentator on Fox News will say “Let them hate us, so long as they fear us.” The commentator will probably present this as a saying of Niccolò Machiavelli, Florence’s great political theorist. But being assembled here in Florence this morning, we should dwell for a moment on this saying and Machiavelli’s relationship to it, for Machiavelli was undoubtedly a very wise student of statecraft, and one of the true gems in his work on political theory is an exploration and exposure of the foolishness of just this idea. First, we should recall that this statement is not Machiavelli’s–it comes from the Emperor Caligula, a man who has secured his reputation in the United States through pornographic movies. Hardly a figure worthy of being emulated by the leader of a modern democratic state, much less a Family Values Republican.
In chapter 17 of The Prince Machiavelli says that “it is much safer to be feared than loved”–a very shrewd rearrangement of Caligula’s statement. But he doesn’t stop there–he goes on immediately to say that the one of the worst mistakes a prince can ever make is to be hated; for in this way he converts himself to a target. He compounds the risks he personally and his subjects must face. Stephen Holmes has an excellent discussion of this in his new book The Matador’s Cape, an extremely insightful study of America’s recklessness in responding to the terrorist threat that struck on 9/11. The point is obvious: reputation matters.
The balance that Machiavelli commends to us is this: don’t strive to be loved, but at all costs avoid being hated. A modern state need not flinch from being feared, but its position is strongest when it exhibits the values of virtue of which he writes. A state which is seen as virtuous, strong and decisive is best able to assure its security.
This attitude of Machiavelli’s is not so far from that of America’s Founding Fathers. In the Declaration of Independence, Thomas Jefferson wrote of a “decent respect to the opinions of mankind,” and indeed, let us not forget to whom this foundational document was addressed. And in The Federalist No. 63, Alexander Hamilton put it this way:
An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?
Note that the concept that Machiavelli advances as “virtue” is transformed. For the Founding Fathers, it is “justice.” This is a key distinction; a critical and essential element of the American idea.
We should mince no words about it. After 9/11, America enjoyed the sympathy and support of the world. In less than six years, this powerful asset has been frittered away. But it doesn’t stop there. In its place, a great wave of hatred is building. And that presents a great peril to us, not just to reputation, but to our security.
These developments are the foreseeable consequence of the administration’s policies. What is the antidote to them? I see in our recent past an excellent model which very effectively addresses these issues. The model I look to is Dwight David Eisenhower’s. A career soldier and battlefield tactician, Eisenhower knew what can and cannot be achieved on the battlefield. He knew that conquering a country is insufficient to governing or transforming it. He upheld the values of the Party of Lincoln–a party which has, to our great loss, all but disappeared from the stage in America. A party which laid the same stress on a commitment to justice that our Founding Fathers did.
Eisenhower said “Though force can protect in emergency, only justice, fairness, consideration, and cooperation can finally lead men to the dawn of eternal peace.” He was committed to caution in wielding our nation’s great military power, and careful deliberation and hesitancy before intervening with violence in the affairs of other countries. But he intervened and committed forces abroad when he judged this necessary because other courses had been exhausted or would be fruitless. Most importantly, he recognized that the reputation of America as a country committed to justice was a tool potentially more powerful than any bomb or missile system. Ike appreciated this as an asset he inherited as president and he was committed to pass to his successor. George Bush can make neither claim.
That America acts justly, and perhaps even more importantly, is perceived so, when it deals with its enemies is not irrelevant; it has been an essential aspect of American success in the world that marked the second half of the twentieth century.
And the turn away from justice has been the essential failing of American foreign policy in the first years of this century.
What does that mean? The world is prepared to accept justice that is swift and terrible. Europeans are skeptical of the death penalty, of course, but more broadly in the world it is still accepted. In a sense then, harshness of sentence and speed of process are not major issues. But it seems to me that the essential one is very simple. In a word, it is normalcy–do we treat our enemies the same way we would treat another person accused of the same wrongdoing? Are we going to mete out a different flavor of justice to people from across the world who have brown skin and practice Islam than the flavor of justice we ordinarily dispense? This will inevitably be where the eyes of the world are fixed.
And rightly so. We sometimes forget what a bill of attainder is, this strange word which appears in several of our foundational documents. It is a process by which the legislature or the executive provides a special process for the trial of specified individuals on specified charges–as happened in 1641, for instance, when Parliament voted a bill of attainder against Thomas Wentworth, precipitating the First Civil War in England. For the Founding Fathers, this notion defined tyrannical injustice. And in the eyes of the world, there is no doubt that it does today as well.
Another essential element is removal of the political from the process of criminal justice. By this, I mean “political” the way the term is used by Karl Rove, and not the way it is used by Aristotle. Is the criminal justice system being manipulated in such a way as to improperly advantage a political party?
The policies developed by the current administration bear both badges of injustice–namely special rules crafted for a particular group, and an historically unprecedented level of politicization of prosecutions, which has now culminated in a major, and–to those who followed the management of legal maneuvering in the war on terror–unsurprising scandal.
I do not reject the war paradigm. I reject the notion that we have to choose between the war paradigm and the criminal-justice paradigm. In fact we must follow both–that is, there are circumstances plainly governed by the war paradigm–the invasions of Afghanistan and Iraq, for instance; and there are situations which plainly are covered by the criminal justice paradigm. There will always be some difficult border cases, but generally temporal and spatial proximity to the battlefield is a good basis for deciding the bin into which the person initially lands. Making the world into the battlefield and declaring the war to be one without end are good examples of the sort of intellectually dishonest tricks which the administration has played–which have eroded respect for our nation and its tradition of justice. A person seized as a combatant may and should be prosecuted under an appropriate criminal law system if the evidence supports the view that he committed a crime; indeed this is what the law of war requires, and it is what the security of Americans and others throughout the world requires. The issue is therefore a simple one: not whether to use the war paradigm or the criminal-justice paradigm, but whichever is used, rigorously and fairly to adhere to the legal rules for these paradigms.
If the rules don’t work–a proposition of which I am not convinced–then they should be changed through an appropriate process–legislation or amendments to treaties, for instance. They should not be changed by secret acts of an executive, skirting the limits imposed on his power. Again the process of secret modification of the law for the purpose of prosecuting a specific group of people is the essence of tyrannical–that is, unjust–governance, and will be viewed by the entire world this way.
Consequently what is a nonstarter:
Guantánamo, by which I mean the series of practices now condemned around the world and recently described by Spain’s Supreme Court as a “legal black hole” and a “lawless place.” This is a blight on America’s reputation and has already done incalculably greater damage than could be offset by intelligence gained from these extralegal processes, if any was. The major issue remains highly coercive interrogation techniques. Does it not bear testimony to the malicious resilience of this administration that today, three years after the disclosure of the Abu Ghraib scandal, this remains the case? I continue to operate with the assumption that the “program,” as President Bush called it in his famous press conference on September 6, 2006, is still being used by the Central Intelligence Agency and by the Joint Special Operations Command. The “program” includes waterboarding, hypothermia, long-time standing and sleep deprivation in excess of two days. The use of these techniques is a criminal act, proscribed by United States and international law. The law is being disregarded.
Next, termination of the program of extraordinary renditions. The notion of extraordinary renditions dates back to 1992, and as it was practiced up until 2002 it raised important issues, but from 2002 forward it was transformed into something else, namely the practice of holding detainees outside of the law and legal accountability for indefinite periods. This is known under the law as “disappearings.” It constitutes a jus cogens crime under international law as well as a crime under United States law. The first prosecutions for the jus cogens crime of “disappearings” were charged by the United States in 1946. Today there is a distressing failure of institutional memory in the U.S. Department of Justice. However, prosecutions are pending against the authors and perpetrators of these operations in Germany, Spain, Italy and other countries, and the European Parliament is busy exposing the complicity of several member states in this program. Ultimately, both the world and America will require accountability for the authors of this enterprise. But the first step is to discontinue a process which brands America as a lawless power.
The administration is right that protection of the American people is its highest obligation, but that duty does not carry with it the right to eviscerate the institutions that define America. And an effort at protection that proceeds with callous disregard for justice is, as Eisenhower said repeatedly, doomed to failure.
This approach gains us the justified contempt of the world and of our oldest allies. Many of them now turn away from cooperation with us in the fight against terrorism–and that is a victory for the terrorists and a serious weakening of a strength we have come to depend upon.
So what should the next attorney general–let’s assume his name is James Comey–propose to Congress? In my mind, process is key. That is to say, if changes are undertaken, they must not be done in secret. They must be done through the processes the Constitution and laws contemplate. Terrorism will not be the only security threat that America will face. But it will be an extremely important one. We will soon approach the same phenomenon that Britain and Spain have already seen, namely the arrival of “second generation terrorists”–terrorists who are citizens, frequently born and raised in the United States and operating within the country with the ease of a native. This will require public discussion and resolution of a number of issues.
Phil Heymann and Juliette Kayyem have written a book entitled Protecting Liberty in an Age of Terror. I do not agree with much of their conclusions and recommendations. I do agree that the list of issues they have identified are the major issues which should be discussed and acted upon. This includes the concept of investigatory detentions, targeted killings, the use of classified materials as evidence, special treatment for persons in the country irregularly, the suspension of habeas corpus and the role of military courts. Again in deliberating and acting on these issues, we must be vigilant in insuring that fundamental notions of justice–as Americans have historically understood them–play the defining role.
The Bush Administration has acted on each of these points through Executive fiat and legerdemain. The next Executive must review its policy choices, and will almost certainly make different choices in many areas. But the most important point is that it do so in a public process worthy of the system of government that the Founding Fathers crafted.Prepared remarks for the Fourth Annual Conference on Counter-Terrorism at Villa La Pietra, Florence, Italy, May 26, 2007.