Just Wrong

2002 Sep 23

Dear Editor--
It is hard to imagine any more ways in which Victoria Toensing ("A National Need for Preventive Justice", 2002 Sep 23) could completely misunderstand American priorities, American justice, or American liberty. The proper response to an act of barbarism is not more barbarism. It is a rededication to the cause of freedom -- to the Constitutional guarantees that make the United States of America the most free and open society in the history of the planet.
I would feel more assured that her proposed "prism for dealing with the issues of detainees and the collection of evidence would not abandon our constitutional precepts" if she did not then go on to spell exactly how, in fact, it does jettison those precepts. Due process? Presumption of innocence? Separation of powers? Judicial review? Although these terms have long been identified with American liberty, Ms. Toensing sees fit to cast them on the dustbin of history.
And please do not repeat the tired -- and wrong! -- assertion that World War II justifies the secret tribunals, indefinite uncharged detentions, and highhanded assumption of unbridled exectuive power. In case Ms. Toensing has missed it, there is a crucial difference between 1942 and 2002: Today, Congress has not seen fit to grant -- nor the President to even seek! -- a declaration of war. The elected leaders of this great democracy have not said, in the voice of the people, that we are at war. Therefore, no "wartime emergency" measures are legal or justified. The President has had twelve months to make his case and to ask for a writ of war. He has not troubled to do this, making the overheated calls for rampaging executive authority ring somewhat hollow.
I mention only in passing that almost every one of the decisions so happily offered as precedent now, has been long considered a travesty of American justice, that every act of judicial deference has been long considered a regrettable mistake, and that every executive trampling of individual liberties has been long regarded as a Constitutional debacle.
Ms. Toensing finds it "bizarre" that the government was required to disclose its charges and evidence to the counsel to John Walker Lindh. What she finds bizarre, true lovers of liberty will find heartening: The Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and all the attendant legal structure, exist to protect the individual from the unrestrained fury of the State. Not merely as a citizen but as a human being, Mr. Lindh was entitled to those full protections and was afforded all of them. Amazingly, the walls of civilization somehow did not come tumbling down -- because America is strong enough to offer those protections even to those who wish to destroy us -- and America is strong enough to triumph nonetheless.
In the case of Messr. Hamdi and Padilla, it is so comforting to know that "they are being held as prisoners of war until the end of the conflict, as has been done ever since rules of war were written." Apparently, in this example, since the rules of war happen to be convenient, they are to be sacrosanct. But when the rules of war do not favor the administration view -- such as when the Geneva Convention demands full and impartial hearings into the status of prisoners of war -- then suddenly we are in a "new age" when the old rules do not apply. By the way, Ms. Toensing is somewhat untruthful. Messrs. Padilla and Hamdi are not being held as "prisoners of war". The President's men claim only that the two are "unlawful combatants" -- a designation with no recognized meaning and thus, ironically, itself unlawful. "Prisoners of war" have rights as guaranteed by the Geneva Convention and other treaties. "Unlawful combatants" apparently remain or go free at the whim of the President.
Several times Ms. Toensing asserts that prisoners should be detained "until the end of the conflict". Yet we are engaged in a drawn-out conflict, the very embodiment of a "long twilight struggle". When, exactly, will the war end? How are we to know? Had President Bush deigned to obtain a writ of war, our objectives and victory conditions would be clear. But instead we are offered war without end, an ill-defined and unceasing conflict worthy of Orwell's 1984. Normalcy will never return because this so-called "war", unencumbered by anything so quaint as a Congressional writ, has no discernible endpoint. Terrorism is not a war to be fought. It is a disease to be contained, a virus on the body politic. It will remain for as long as regions exist in which it can incubate.
Ms. Toensing askes, "Why would we want to reveal any information about who is in custody or the basis for their detention when it could expose sources and methods?" The answer is simple: Because democracy and the fundamental libery of Americans absolutely require an open and communicative government. If the people are to remain the government's masters, must they not know what the government does in their name? Ms. Toensing also worries that opening deportation hearings aids the enemy, for example by "giving them pieces to complete an intelligence mosaic by which they can learn, for example, which detainee is cooperating or which cell has lost members and needs replacements". If Al Qaeda needs to read the court docket to know which of its cells has gone missing, then this "terrorist network" poses no more threat than the keystone cops. The only ones who lose in an atmosphere of absolute, unchallenged secrey is the American people.
Ms. Toensing bravely decries her own ability to judge terrorist trials. (By the way, the government can still close a deportation hearing -- it need only show cause to the judge.) Why? Because, "Quite simply, I do not have access to the relevant investigative and classified information. Neither will the advocates of public disclosure. Nor will the press." That is to say, the sovereign people of the United States of America cannot be trusted with the power to decide for themselves the propriety and validity of their government's actions. If we remove the public entirely and without appeal from this, the most basic of actions, then what role is available? Or should we simply let our "betters" rule, perhaps in perpetuity?
Through her tone and her words, Ms. Toensing betrays the ultimate problem that any freedom-loving citizen has with the actions she defends: She and her ilk simply do not believe in democracy. They do not have any faith in the country they claim to defend and to cherish. They do not believe in the fundamental solidity and awe-inspiring strength of the American republic. They -- more than the barbarians who felled the Towers -- have wrought unneeded, unprecedented, and unwarranted changes in the political fabric of our nation. They -- more than al Qaeda, more than Iraq -- threaten the freedom of American citizens.
Ms. Toensing gets one thing right: "What is important for all these cases is that the courts are functioning." They are indeed -- and happily they have so far issued rebuke after sharp rebuke to the groping grasping grip of the executive. Thank Providence that the courts are open and functioning -- for they alone are protecting the American people and American democracy itself against this President who purportedly swore to uphold the Constituion and now cynically strives to topple it.
We are stronger than this. We are smarter than this. We are better than this.

With respect,
-=-Bernard HP Gilroy
On 2002 September 23, the Washington Post published an op-ed by Victoria Toensing. It had quite the effect on me -- though not, probably, the effect Ms. Toensing desired. I wrote back to the paper with my own take on her letter.

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