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December 15, 2005

Restoring America's Honor
Posted by Morton H. Halperin

As I write, the current session of the United States Congress is nearing its end. Congress is never at its best when it seeks to draft complicated legislation as it races for the door. Now it is close to banning torture and other cruel and inhuman treatment -- as it should. But at the same time it is close to limiting access to the courts to enforce this rule -- which it should not do.

Of the many issues in play in these last days none is more consequential for our own democracy, and for our ability to influence Iraqi and other behavior, than the debate over the Graham-Levin provisions seeking to limit the right of judicial review for those held in Guantanamo. This provision was written on the Senate floor without benefit of hearings and is now being rewritten in secret by conferees with little knowledge or understanding of what is at stake. This provision would undercut the intent of the McCain amendment banning torture, which this administration has now accepted. As Senate Judiciary Chairman Arlen Specter has urged, the provision should be stripped from the Defense Authorization bill now in conference and sent to the Judiciary Committee for hearings.

Conservatives and Liberals alike can agree that the United States should be, and often is, a great shining light for those struggling for democracy and human rights around the globe. For that reason we are least true to ourselves when we fail to meet the standards we seek to get others to adopt.

Nowhere is this clearer than with the treatment of prisioners under our control.

Americans all applaud when our Ambassador in Iraq rightly condemns the Iraqi government for mistreating prisoners held in Iraqi prisons. However, we need to understand that many Iraqis and many others around the world believe that the Iraqi guards who are mistreating prisoners are only doing what they say we do in Iraq, and believe we have done elsewhere. The Congress is on the verge of taking the first step to restore America's honor by enacting the McCain Amendment. The language of that provision is clear and it is long past time for Congress to make clear that the United States will fully meet its commitments under the Torture Convention.

Congress does have the constitutional authority and duty to regulate the procedures under which the President detains enemy combatants and it should provide for judicial review in an orderly fashion of such decisions. Just as these issues are too important to leave to the President and the courts, they are far too complicated and important to be dealt with in the absence of hearings and a full debate. Congress should now say no to torture, and when it returns in January it should deal with the issuse of detention and judicial review.

Beyond regulating for the future, we must understand how we strayed so far from our ideals and our laws. Congress must, therefore, also create a commission to fully investigate all of the detentions everywhere in the world by the United States since 9/11 that have undermined our moral authority, as we saw most recently during Secretary Rice's trip to Europe. Only with this knowledge will we be in a position to restore the United States to its indispensable role as a moral leader.


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Of the many issues in play in these last days none is more consequential for our own democracy, and for our ability to influence Iraqi and other behavior, than the debate over the Graham-Levin provisions seeking to limit the right of judicial review for those held in Guantanamo.

What sophomoric nonsense! The issue is: how do we choose to deal with a situation that is not an analog of a criminal justice problem, where "innocent until proved..." is appropriate. Rather, these situations are closer to "Hume's horror," where the presumption of innocence is not appropriate. It is this *fact* (or methodological shift, if you will) that you find uncomfortable, but the fact that you're discomfited doesn't automatically render the statutory accomodation of your discomfort appropriate or wise. The fact of the matter is that the McCain legislation is entirely inappropriate, and ironically will have a consequence the opposite of what you expect because we'll be compelled to seek extra-legal means to achieve the necessary ends.

"We" are already doing extra-legal means. Whether the ends are necessary or not is a national secret, we -- a different we -- aren't in any position to know.

It's true that if we make this stuff illegal it will just go underground. But that's right and proper. The people who're doing kidnapping and torture and extrajudicial killing etc for us are terrorists. The difference between them and bin Ladin is they're terrorists who say they're on our side.

If you feel threatened by the Devil's Disciples and you hire the Hell's Angels to protect you, you don't win even if the Hell's Angels win. You lose either way. And that's what we're facing.

If we can't win the WoT without being terrorists, then we've lost regardless. It's our job to find some other way. And telling our own terrorists we don't want them to "help" us that way is part of it.


Which are the circumstances in which innocent until proven guilty is appropriate?

When you say that the result of the McCain legislation is that "we'll be compelled to seek extra-legal means to achieve the necessary ends", who is the "we" that you are talking about, and what specifically are the necessary ends you have in mind?

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