Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Rule of Law Succumbs to Torture for Safety

James Skillen


June 6, 2008

“Guantanamo Bay has become an image throughout the world which has hurt our reputation,” said Sen. John McCain in 2007 (The New Yorker, 4/14/08). Earlier this year, McCain affirmed that “Staging a mock execution by inducing the misperception of drowning is a clear violation” of laws and treaties (Washington Post, 2/14/08).

Despite widespread public condemnation by McCain and many others of what has taken place at the U.S. detention centers in “Gitmo,” in Abu Ghraib, and in other locations, and despite the fact that the Congress voted to ban waterboarding and other illegal interrogation methods used by the CIA (the military branches and the FBI have already ruled them out), President George W. Bush continues to defend the use of the very practices that have dragged down America’s reputation in the world.

What rationale does the president offer for his position? In vetoing the congressional bill that called for restrictions on the CIA, the president said that it would remove “one of the most valuable tools in the war on terror . . . this is not time for Congress to abandon practices that have a proven track record of keeping America safe” (Financial Times, 5/31/08).

Here in clear terms the president argues that American safety (for “freedom,” of course) transcends the principle of the rule of law. This is the great offense decried by so many foreigners and Americans alike. Until now, America was identified with the rule of law. Democracy and freedom “under law” were to show a better way to those suffering under dictators who stood above the law.

Yet the president, supported by his vice president, by key lawyers at the White House and Justice Department, and by civilian officials at the Department of Defense, has insisted persistently, for more than six years, that to secure the United States against terrorism, the “commander in chief” should have the authority to command actions outlawed by dozens of domestic laws and by many of the long-standing treaties the U.S. signed and even helped to write. Pragmatism in support of American safety supposedly justifies the exceptional means that appear necessary to the president to achieve that end.

The argument and citations in this commentary do not come from secret sources and do not belong to Democrats alone. The Supreme Court has already ruled some of the president’s actions unconstitutional. A new report by the Justice Department’s inspector general gives an account of opposition by FBI officials to illegal tactics the administration was authorizing. CIA Director Michael Hayden admitted in early February that the agency used waterboarding in 2002 and 2003. Two months ago a CIA report indicated that early on it anticipated that without legal cover from the Justice Department some of their interrogation methods would almost inevitably lead to criminal investigations. Books and essays now pouring off the press are filling in the details about critical decisions and the long course of these events. (See, for example, Phillipe Sands, Torture Team: Deception, Cruelty and the Compromise of Law).

Is America really safer today as a result of using “enhanced interrogation techniques”? Certainly not if one judges that security depends increasingly on the high regard and cooperation of other countries. Moreover, many of the detainees in Gitmo and elsewhere will almost certainly not be prosecuted, because the evidence that would be used against them was obtained by illegitimate methods.

The challenge we face this election year is not only to elect a president and members of Congress who will submit to the rule of law. We need a new climate of public opinion that puts principle above pragmatism and no longer allows dedication to America’s greatness to justify the use of unjust and unlawful means that undermine our reputation and respect for the rule of law both here and abroad.

— James W. Skillen, President
     Center for Public Justice

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”