Bush War Crimes and the Fog of History

There's an intriguing set of articles and responses online today regarding the Bush administration and civil liberties in the war on terror.

For me, one of the things that pops out is that the outrage over America's response to terror, including the wars in Afghanistan and Iraq, and especially the detention facility at Guantanamo Bay, is driven mostly by anger at President Bush and Vice President Dick Cheney. Routinely, I see suggestions that the impairments of civil liberties under Bush are the worst in American history. Much of this, even with the often super-sophisticated scholarly presentations, ends up being Bush derangement leavened with a foggy grasp of U.S. history.

We see this in Jonathan Mahler's, "The Fog of War-Crimes Trials," at the New York Times. Mahler compares the Bush administration's military tribunals to the Nazi's Nuremburg war crimes trials. He suggests that at that time the U.S. practiced a moderation of law, which stayed the hand of vengeance. It was the legal process of a civilized victory, which is meant as a contrast to the Bush administration's apparently uncivilized approach:

As civilized people, we have a natural desire to see criminals held responsible for their actions. The desire is that much stronger in the case of large-scale crimes like genocides or terrorist attacks, which seem to demand not just accountability but a reaffirmation of the moral order — a public enumeration of what is right and what is wrong — that can be delivered only in a courtroom.

The hope once was that military tribunals at Guantánamo Bay would meet this need — if not provide closure on the Sept. 11 attacks, then at least enable a collective participation in the trials of their perpetrators. There were practical reasons to opt for tribunals over the federal courts, which were not designed to try combatants captured on the battlefield: a soldier couldn’t very well be expected to read a prisoner his rights. But there was something else, too. Trying terrorists as war criminals would send a powerful message to the world.

And yet the tribunals that just opened hardly have the feel of history in the making. They haven’t merited much discussion in the presidential campaign; nor are we a nation riveted by the trial of the first defendant, a former driver for Osama bin Laden named Salim Hamdan. Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity — not just about the extent of Hamdan’s guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror.

It has certainly not helped matters that we are now almost seven years removed from 9/11 and the trials are just getting under way, having been tied up in procedural issues for the better part of the Bush presidency. Of course, this is how adversarial systems are supposed to work. Hamdan’s lawyers were simply carrying out their obligation to provide their client with a vigorous defense by questioning the lawfulness of the system by which he would be tried. There was precedent for this. When Franklin Roosevelt convened a military tribunal to prosecute a group of Nazi saboteurs captured on American soil during World War II, their government-appointed lawyer, Col. Kenneth Royall, challenged its lawfulness before the Supreme Court, which met in an emergency summer session and ruled unanimously that the tribunal was legal.

But because the Bush administration’s detention policies were so extreme and uncompromising, they have invited numerous challenges that have yielded an expanding thicket of rulings in favor of the detainees — Hamdi, Rasul, Hamdan, Boumediene — which have obscured the larger question of guilt or innocence.

Note that oddity: The Bush administration's policies have been struck down in favor of the detainees? Sounds like constitutional checks and balances to me. The system's working, and the length of the process, if anything, means that we are granting more protection to suspected terrorists than anywhere else in the world. Yet, BushCo's still vilified as nearly as bad as those Nazis in the dock at Nuremberg.

The second piece of interest today is Alan Brinkley's review of Jane Meyer's The Dark Side at the New York Times.

Brinkley's essay is itself dark and melodramatic, painting President Bush as a puppet in the hand of an all-powerful vice-president. But the conclusion brings me back to this fog of history theme:

There is no happy ending to this sordid and shameful story. Despite growing political pressure, despite Supreme Court decisions challenging the detainment policy, despite increasing revelations of the once-hidden program that have shocked the conscience of the world, there is little evidence that the secret camps and the torture programs have been abandoned or even much diminished. New heads of the Defense and Justice Departments have resisted addressing the torture issue, aware that dozens of their colleagues would face legal jeopardy should they do so. And the presidential candidates of both parties have so far shown little interest in confronting the use of torture or recommitting the country to the Geneva Conventions and to America’s own laws and traditions.

The Bush administration is not, of course, the first or only regime to violate civil liberties. John Adams, Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt all authorized or tolerated terrible violations of civil and human rights, all of them in response to great national and global crises. In some respects, the Bush administration is simply following a familiar path by responding to real dangers with illegal and deplorable methods. But Jane Mayer’s extraordinary and invaluable book suggests that it would be difficult to find any precedent in American history for the scale, brutality and illegality of the torture and degradation inflicted on detainees over the last six years; and that it would be even harder to imagine a set of policies more likely to increase the dangers facing the United States and the world.

Again, note here with some incredulity: George W. Bush is not the first president to mount a robust response to national crises, centralizing energy and power in the executive to meet the exigencies of the day.

Indeed, Abraham Lincoln today is widely regarded as America's greatest president, and further there's a new historical consensus (among scholars not obsessed with alleged BushCo war crimes) that the internment of Japanese Americans under the Democratic Franklin D. Roosevelt administration constitutes the low point in the civil liberties history in American constitutional law - "one of the darkest chapters in American history."

This is not by any means to minimize any potential human rights violations Americans have committed these last few years. It is to suggest that the history of the Bush years is still young, and questions of state power in the age of sacred, transnational terrorism are evolving.

Finally, Rick Moran has read portions of Mayer's book, and Brinkley's review here as well, and says:

I reject the view of Cheney (or any of the others involved in the torture regime) as being dark lords of the underworld. They were, in their minds, patriots out to protect the country from a very real threat (something with which both Brinkley in his review and Mayer in her book agree). But good intentions don’t excuse immoral and criminal actions. Nor do they obviate the need to air out the truth of what has gone on in the dark places where just because no one hears the screaming it doesn’t mean the law breaking didn’t take place.

Brinkley’s review – overly and unnecessarily dramatic at times...

Moran nevertheless calls out conservative partisans to think critically about the horrendous practices carried out in our name.

He's right to remind us to think critically, and to hold members of our own party to account.

At the same time, I can't help but remember Debra Burlingame's penetrating essay on Abdullah Saleh Al-Ajmi, the former Guantanamo detainee who upon his release returned to Iraq and killed over a dozen at Mosul in a suicide bombing attack last March.

Yes, all of this is complicated. The United States has a moral responsiblity to protect human dignity while prosecuting the legal war on terror. We also have a responsiblity to wage the fight to which we're engaged with vigor and dispatch.

Somehow I think folks like Mahler, Brinkley, as well as Jane Mayer, in their historical fog, overlook this last detail.