Generally, I write these posts in MS Word and edit before I post. Given the lack of traffic here, it seems a little silly to change that pattern, but this feels urgent–and it is time-sensitive. The article that triggered the thoughts will be archived soon. The moment will pass. And the issue is crucial.
So if it’s the week of July 1, go to this link
http://www.nytimes.com/2008/07/01/washington/01gitmo.html?th&emc=th
If it’s not that week, read on; I’ll summarize a bit.
The article concerns Guantanamo and an appeals court decision that a particular prisoner was held on scant real evidence. In fact, the government’s basis for holding this particular Chinese Muslim was that it had three documents that all declared him–without citing any hard evidence–to be connected to various terrorist or terrorist sympathizing groups.
The court, according to the article, rightly compared this to a situation in Lewis Carroll’s “The Hunting of the Snark” where a speaker declares, “I have said it thrice: What I tell you three times is true.”
The court’s ruling that just saying so does not constitute grounds for detaining a human being for six years of his life–or any length of time for that matter elicited this response from Glenn M. Sulmasy, “a national security fellow at Harvard,
“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Mr. Sulmasy, who is also “a law professor at the Coast Guard Academy”.
The military, in other words, should get to decide whom it imprisons and for how long entirely on its own.
Of course, the article doesn’t clue us in to the intricacies of Mr. Sulmasy’s thinking. We only get the conclusion. But that conclusion raises serious concerns about our nation’s division of powers. Of course, there are 3 branches of our governments: legislative, judicial and executive. The first 2 determine what is legal, that last enforces those laws and conducts the country’s business. In the federal government, the business includes making war, so the military is linked to the executive by way of a civilian commander in chief and the Secretary of Defense whom he appoints. This arrangement helps create a balance of power.
Thus, while the military may most often go its own way–and has managed to convince a majority of Congress as well, apparently, as a majority of the populace to go along most of the time–it is in fact ultimately beholden to the president and he, with the permission of Congress, decides which wars to fight.
Without this crucial safeguard, the military could decide to go to war on its own. Generals would exercise much greater power over our fates. Often, at least when I was in government and American history classes, I was told that the idea of civilian leadership of the military was enlightened–a kind of trigger-lock on the whole apparatus of warfare.
But Mr. Sulmasy’s statement suggests that the military should oversee its own activities and be allowed to reach judgments by a different standard, according to its own perceptions and determinations and quite apart from civilian oversight. This, I submit, is a dangerous position.
I reallize that Mr. Sulmasy is not talking about the president’s power to initiate warfare or the Congressional power to declare and provide funds for war. But the civilian commander in chief is a synechdoche of military structure and control. As the president leads the entire military when it comes to making war, so the civilian justice system should have some say about how the military (part of our government and thus reflective of our values) conducts its affairs–particularly when those affairs involve civilians–regardless of nationality. Remember, the Declaration of Independence, speaks of rights for all humans, under which, in the particular instance of our nation, we gained the right to establish a government for ourselves in order to secure “inalienable” rights of “men” (not just Americans).
Of course, like Mr. Sulmasy, the military power-structure assumes that detainees at Guantanamo are not civilians but “enemy combatants.” And we are in a so-called war on terrorism that, mimicking our global economy, defies the notion of national boundaries and identity. This detainee from China was found in Afghanistan and, maybe, had friends or associates connected to the Taliban or Al Qaeda. Terrorists don’t wear uniforms, so their guilt is by association–unless they are caught red-handed.
And that, it seems, seldom happens.
Perhaps, then, we need a revised strategy for finding and prosecuting–or combating–these “enemies. The counter-argument generally asserts that suspension of habeas corpus is a temporary casualty, instituted sparingly and only when someone has a really good reason. But even detention of Japanese citizens of the U.S. (which was pretty awful and for which the government has had to apologize) did not last 6 years. World War 2 as not six years long. Moreover, we have been promised a War on Terror with no end in sight. So presumably rather than 6 years, an innocent person could spend life in prison simply because the Pentagon said three times that he or she was dangerous. Or might be.
So this is my urgency–we need above all not to sacrifice our values in the pursuit of security. This deviation from principle is not an aberration and is unlikely to be temporary. We cannot afford to turn over not only 40% of our federal budget but also the power to decide who is an enemy and what to do about it to people in military uniforms. In an age of volunteer armies, this becomes especially important. I mean no disrespect to our military citizens. I admire their courage and dedication. I do not take lightly their willingness to die for us, for me. Nevertheless, a volunteer army means everyone in the army, navy, air force marines, is willing to go to war–may even expect to. There is no civilian restraint in such a system. No poor schmuck gets caught up by fate in a war in which he or she has no stake or interest and sent off, terrified, to risk life on a battlefield. So now more than ever we need civilian oversight of military activities. We need a president who acknowledges other options than war, a populace vigilant about the expense, in all ways, of maintaining the military as our first choice against our adversaries. And a populace devoted enough to the values of its society that it will not abandon those principles just to be safe.
Many military people cite willingness to die for one’s values as a sign of true virtue. If you won’t die for them, the argument goes, it doesn’t count. Well, I’m just holding the rest of us to that same standard. I don’t call for us to go into battle. In fact, I believe we should have fewer battles and resolve conflicts by other means. The danger I invite us to enter is hypothetical: maybe if we release people we feel might be dangerous, maybe if we never even detain them, some will go on to commit heinous acts of agression. And maybe they won’t.
We need civilian courts to protect those fingered by the military without probable cause or evidence. It’s easy to give up six years of a poor Chinese man’s life, but if guilt by association remains grounds for arrest, those six–or eight or ten or twenty–years could be your next door neighbor’s
Or your own.
