One of the most important rights people have is the right to have one’s day in court.
It is the basis of our judicial system. And our judicial system is one of the mechanisms that guarantees the government treats us fairly. That bedrock principle suffered a setback last week when President Bush signed into law a bill that sets out rules for how detainees in the war on terror are treated.
On its face, the compromise Congress presented to the president sounds good: It bars government agents from torturing detainees and suspected terrorists. Americans don’t wish to be equated with authoritarian regimes around the world that routinely arrest and mistreat people for the flimsiest of reasons.
And we all know what constitutes torture, right? Beating a prisoner with a baseball bat is torture; harsh questioning under bright lights is not. But what about sleep deprivation or forcing detainees to stand in one spot for many hours at a time? How about forcing prisoners to stand in uncomfortable positions until their muscles cramp, or the various forms of mock drowning?
It’s difficult to draw a line that will satisfy all parties. But this law leaves it up to the president, any president, to decide how torture is defined during his administration.
We’re sorry, that’s too arbitrary a standard for us.
When the limits of government authority aren’t clearly defined, there is always a tendency for people to test the limits of that authority. We fear the blurry lines will be crossed by government agents trying to do their jobs. To protect those agents, government could reset the lines somewhere around the new limits. Although that serves to more clearly define what are acceptable interrogation methods, those methods are set by agents in the field rather than by officials who answer to the public. The field agents are answerable to their superiors, who would be inclined to allow them to push the limits as long as they get the desired results.
As if that isn’t bad enough, the law denies anyone the president declares an unlawful enemy combatant access to federal courts to question their detention or treatment. Bush said, “This bill provides legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists, simply for doing their jobs.”
Legal experts believe this portion of the law will be challenged in court because it gives the executive branch the authority to detain people indefinitely with no access to the courts to challenge their detention. Do Americans no longer cherish the right to face one’s accuser in court? Even Saddam Hussein sits across the courtroom from those who put him on trial.
Many Americans likely will look at this law as the terrorists getting what they deserve. In some cases, that might be true. But what about detainees who were arrested for being in the wrong place at the wrong time, or because a neighbor with a grudge fingered them to authorities? Are they to be waterboarded for hours, then tossed into frigid rooms in an effort to extract information they don’t have? By keeping detainees from having their day in court, Congress and the president are condemning the innocent along with the guilty.
In defense of this law, some conservative commentators have quoted former Supreme Court Justice Arthur Goldberg, who wrote that the Constitution is not a suicide pact. We have to agree; but if we give up the principles generations of Americans have fought and died for, we won’t be the America that’s long been a beacon of freedom and opportunity to the world.