The poorest being that crawls on earth, contending to save itself from injustice and oppression, is an object respectable in the eyes of God and man. But I cannot conceive any existence under heaven (which in the depths of its wisdom tolerates all sorts of things) that is more truly odious and disgusting than an impotent, helpless creature, without civil wisdom or military skill, without a consciousness of any other qualification for power but his servility to it, bloated with pride and arrogance, calling for battles which he is not to fight, contending for a violent dominion which he can never exercise, and satisfied to be himself mean and miserable, in order to render others contemptible and wretched.
- Edmund Burke, “Letter to the Sheriffs of Bristol,” Works of the Rt Hon Edmund Burke, vol. 2, p. 206 (1777).
Yesterday, Army Colonel Peter E. Brownback III, a judge of the Guantánamo Military Commission, dismissed the case against the child-warrior defendant Omar Khadr. Today, Navy Captain Keith J. Allred, the second Guantánamo judge, issued a similar though more detailed ruling, dismissing the case against Salim Hamdan, a figure accused of having once served as chauffeur to Osama bin Laden. Captain Allred’s decision is far more detailed than Brownback’s and proceeds more to the merits of the case. Solid discussion of the Allred decision on technical points has been furnished by Professors Bobby Chesney and Marty Lederman. For my part, however, I think these two decisions are best understood from a somewhat more distanced perspective.
Last summer, in Hamdan, the Supreme Court delivered a black eye to the Bush Administration. It ruled that the Military Commissions concocted by the Administration to try prisoners in the “war on terror” were unlawful because they violated the requirements of Common Article 3 of the Geneva Conventions. A logical consequence of the Supreme Court’s ruling – and one embraced by the entire world community, including our closest allies – is that the brutal conditions in which prisoners were held, not being consistent with Common Article 3, constituted severe breaches, which is to say, war crimes. But rather than do what the common opinion of mankind rightly expected, namely to correct its conduct and make it conform to the Geneva Conventions, Bush behaved like a schoolyard bully. He sought to secure Congressional blessings for what he had done. And the last Congress, now known as the single most corrupt in the nation’s history, and already consigned to the dustbin of history by an angry electorate, acceded to the Administration’s demands – it adopted the stance of the three monkeys of Vedic lore (“see no evil, hear no evil, speak no evil”) by passing all power to the President, and making his decisions unreviewable and supreme law, trumping even the Constitution and the law of nations. The Act assumed, practically speaking, that the president was not a constitutional officer, but rather a dictator. In such a manner justice seemed to disappear, not with a bang, but with a whimper.
When the Administration put forward its Military Commissions Act, Senators Warner and McCain objected and put forward an alternative measure. In articulating their concerns, they advanced one argument which unmistakably reflected the thinking of the nation’s uniformed lawyers. It would be a foolish and dangerous thing, they argued, to begin constructing an entirely new legal framework which introduced new and confusing terminology, and which could not be reconciled with the Geneva Conventions. This approach would introduce uncertainty and would undermine military tradition, order and discipline. Yet that is precisely the approach that the Administration, led on this point by its witless Attorney General, Alberto Gonzales, and with the foul-mouthed lobbying pressure of Vice President Cheney, pursued.
The decisions released by Colonel Brownback and Captain Allred strike exactly this note: they have dismissed the charges leveled against Hamdan and Khadr because they do not conform with the mandatory standards of the Geneva Conventions. Instead these charges are adapted to the hazy, confusing and morally lax standards issued by the Administration with Congressional license. They strike a small technical point, but one which reveals the shoddy, fundamentally flawed structure of the entire Military Commissions process.
The rickety hovel of the Military Commissions, announced with such dramatic flair by President Bush on September 6, 2006, has now collapsed for the second time in two years. One year ago, the world asked how America, a nation that defined itself with a promise of justice for all, could possibly be creating a concentration camp in Cuba. Today, the world, including temporal and spiritual leaders of all stripes, has been united in its revulsion over Guantánamo. The decisions by the military judges are more than a punctuation point; they are a second great blow for liberty. They provide the opportunity for the nation, led now by its Congress, to examine this shameful project once more and bring it to an end.
In our national debate on torture and the mistreatment of prisoners, one theme is consistently on the lips of those attempting to advance the president’s agenda. Our situation is, they say, without any historical precedent. I think when I hear these words that a scoundrel is speaking, for they are uttered with a simple object – and that is for civil authority to free itself from the bounds of civilization and tradition, indeed, from the bounds of common decency. This argument is raised with the object of justifying tyrannical rule and specific practices which defy any individual justification. And indeed, are there not an endless number of historical precedents precisely for such acts of barbarity?
I think for instance of Edmund Burke’s Letter to the Sheriffs of Bristol, a minor masterpiece which is not read and appreciated as it should be today. And reading Judge Allred’s opinion, for some strange reason, I kept hearing the words of Edmund Burke in the background, growing louder and louder with each subsequent paragraph.
The Letter to the Sheriffs of Bristol is a simple document – the transmission to two law-enforcement officers of his constituency of an act that the government of Lord North has put to Parliament. The act suspended the great writ of habeas corpus – not for the good burghers of Bristol, of course, but only for a group of murderous insurrectionists who then stood in open and bloody revolt against their lawful sovereign. And the act went further, namely, it provided that these miserable wretches, whose insolence and defiance now extended to the seas, could be labeled pirates at the King’s discretion, and thus robbed of the right to be tried in courts. They would be dealt with in a summary fashion by the King’s military. And the act also provided that these miscreants could be transported across the ocean to England and held there to await their summary disposition – a step which justified the suspension of habeas corpus, since otherwise an English court might demand an accounting for their brutal treatment and incarceration. And there was no doubt as to the brutality of that treatment – these wicked enemies were left rotting in ship hulks and were succumbing to pestilence and malnutrition by the hundreds already.
Burke was not a man to be taken in by such demonization, least of all by the likes of Lord North, and he registered his sharpest opposition to what was being done. He railed against the suspension of habeas corpus and he called the whole project wicked and unjust. At the time this was a perilously unpopular thing to do, since these insurgents were viewed by the populace as vermin. And what was his counsel to the law enforcement officers? Use your skills and the genius of the English law to subvert this injustice, he said:
I therefore could never reconcile myself to the bill I send you, which is expressly provided to remove all inconveniences from the establishment of a mode of trial which has ever appeared to me most unjust and most unconstitutional. Far from removing the difficulties which impede the execution of so mischievous a project, I would heap new difficulties upon it, if it were in my power. All the ancient, honest, juridical principles and institutions of England are so many clogs to check and retard the headlong course of violence and oppression. They were invented for this one good purpose, that what was not just should not be convenient. Convinced of this, I would leave things as I found them. The old, cool-headed, general law is as good as any deviation dictated by present heat.
Let the Great Writ stand, said Burke, and from this point be suspicious when the Government employs the label “pirate” to shorten the rights of those it sees as enemies. These words reflect the sum and the spirit of the rulings out of Guantánamo. They reflect the spirit of liberty.
And today, in the Military Commissions Act, what has Bush and his crew done that can be distinguished from Lord North’s measures? Very little, in fact. The past echoes in tyrannical excess. The Bush program is indeed more ruthless, more comprehensive in its drive to extirpate the great principles of our nation and its constitution.
Oh yes. Exactly who were those vermin insurgents who by Lord North’s design were to be stripped of habeas corpus, subjected to military trials with no rights and held in the crudest and most abusive conditions? They were the Americans, and the conflict was our Revolution.