The recent Supreme Court ruling in Hamdan vs Rumsfeld striking down the Bush Administration’s use of Administration constituted tribunals in the prosecution of potential war criminals brings to fore the issue of the limits of Presidential power. While I’m glad that this decision was finally reached, it saddens me that it took a lawsuit to make explicit something the Administration should have known long ago.
Regardless of whatever justification was used immediately after 9/11 to expand Presidential powers, that justification no longer exists. The “War on Terror”, like any struggle against non state groups, will never end. Wars against states end when the loser capitulates. Struggles against individuals end when those individuals are killed, captured or incapacitated in some way. Struggles against amorphous groups are never so clean. Dealing with them is more like squeezing a balloon - pressure in one place just causes it to expand in another. As long as a group of people is motivated by an ideology, they can replenish their ranks. Even if the quality of the constituent members varies, these groups can perpetuate themselves a long time. Consequently, if we do not find a way to operate under these conditions that reasonably approximates the way we operated before, we will have forever lost key elements to what has made our society successful and desirable.
It could be said that the reason to abandon the immediate post 9/11 approach is that intolerance and fear are antithetical to creativity. While fear might make us more creative in finding ways to create a safe environment - to specifically conquer our fears, it makes it harder for us to focus on other things. Intolerance creates mental rigidity, stifling the flow of ideas that are the core of creativity. That would be reason enough due to the long term economic cost to our society this will have.
The real reason, though, is that our law is a description of our society and its values. It creates a measure that is greater than the individual statutes and court decisions. In particular, the US, because of the system described by its laws, has been seen as a “city set on a hill”1, a beacon to others showing a better way. Others can look at the bounty of this country, and easily see that the value of the system that governs it. As long as the light shining from that hilltop is good, the beauty can be seen and admired from a distance. But if that light ever dims or turns bad, it will just as quickly be seen by others at a distance and decried.
While it may seem that the urgency of the moment dictate that some action - any action - be taken to respond to the evil of things like 9/11, public policy should dictate a stronger urge to return to normalcy as rapidly as possible. While people are forgiving of the rage of grief, they don’t expect it to last forever. A sign of maturity, in both individuals and societies, is how we deal with injustice. Will we choose to maintain our own principles in the face of stress? Or will we listen to the Emperor of Evil who tempts us: “Strike me down with all your hatred and your journey towards the Dark Side will be complete.”2. Winning isn’t the only thing - what we must do is win without sacrificing what makes this country worth saving.
Doing so won’t be easy. It could be very costly - we can be certain that the enemy won’t “play fair”. This places a tremendous burden on those who want to be leaders. They must speak honestly about the price. We must resist the urge to lower our standards in an attempt to win this war. In fact, we may well need to raise them. This may well result in the guilty going free. It may result in more losses on American soil. But as these costs mount, we are purchasing anew the moral authority we had on 9/11 that has since been squandered. As our innocence becomes clear, the evil done to us also becomes clear. Lies come from the darkness - but a single light drives the darkness away.
It saddens me that the current Administration squandered it’s moral authority by attempting to change the law in such crucial areas as justice for “enemy combatants” or the definition of torture. The pressure of the moment revealed the true values of those in charge3. But, given the current opportunity, we need to return to our roots - for our own sake. As Thomas More expressed this eloquently in Robert Bolt’s A Man for All Seasons when assailed by his son–in–law with the charge that he would give the devil the benefit of law:
MORE: Yes. What would you do? Cut a great road through the law to get after the devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.
An Administration without introspection or humility cannot learn - because it doesn’t believe it has anything to learn. There is a great deal of wisdom in the precedents of the past. Those who think that change is needed should tread lightly and consider the true cost of any changes they might make. Otherwise, those changes may well turn us into the very thing we fear and hate.
1. Matthew 5:14
2. Star Wars VI: The Return of the JedI, DVD Chapter 37, 1:45:00
3. It is easy to say we believe in something when those beliefs have no cost attached to them. What we truly believe is what we’re willing to pay a price for.