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War And Freedom We Can Have Both In a telegram on November 21, 1943, Winston Churchill defined a fundamental difference between the Anglo-American way of war and that of our enemies. Churchill wrote: "The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist." Perhaps Tony Blair and George W. Bush regard Winston Churchill as a bleeding heart lefty. But what Churchill's view represents is an old, very basic principle of Anglo-American warfare and justice: fight war with ferocity, but never lose your democratic soul. Meet the enemy on the battlefield with force, but always treat prisoners humanely in captivity. This is never an easy balance, of course. In the numbing smog of conflict, we make mistakes. Executives invariably over-reach in prosecuting wars, and have done so in both Britain and America in the past. But our system - of habeas corpus, executive powers subject to legislative and judicial checks, and free speech to air the issues - is specifically designed to correct such errors. That's its beauty - and its strength in wartime. It gives us a flexibility in war that dictators lack. It makes our war-making more, not less, effective. And, at its deepest level, it is what distinguishes us from Saddam, the Taliban and the Islamist bombers we face today, just as it distinguished us from the Nazis and Communists of the past. Those of us who believe in fighting this war need not balk at this, or regard civil liberties as somehow a sign of unseriousness in wartime. In fact, protecting liberty at home in wartime is critical to winning the wider conflict, especially in the larger battle of ideas that will ensure ultimate victory or defeat. In this area, there is now little doubt left that the executive branches in both countries have over-reached. The case against Bush, however, is far stronger than that against Blair; and it begins with the legal sanctioning of torture and abuse of military detainees. Advocates for abuse insist that al Qaeda members are not signatories to the Geneva Conventions and so do not merit humane treatment. The argument misses the point. This is not about terrorists and their barbarism. It's about us and our civilization. You can't fight a war to bring democracy to Iraq and Afghanistan, while torturing detained insurgents in Saddam's old prisons and makeshift camps in the Afghan wilderness. As a policy, it's incoherent, damaging to our cause, immoral - and ineffective to boot. The confessions you get from individuals broken by mental or physical brutality are highly unreliable, as any professional interrogator will tell you. They destroy the torturers as much as the tortured, which is why much of the resistance is now coming from the very ranks of the CIA and military charged with carrying this vile practice out. If Israel eschews the tactic, so can the U.S. The price the West has paid in terms of moral standing is already incalculable. The same goes for the notion that the executive needs no checks in wartime. The legal architects of Bush's torture policy have argued more generally that the president as commander-in-chief has constitutional powers that allow him to circumvent all laws and treaties as he sees fit in wartime. This radical new extension of presidential power is neither conservative nor effective. Unchecked executive power fatally misread intelligence before the Iraq war and has made terrible mistakes in the occupation. Secrecy and paranoia have helped compound these errors, rather than rectify them. Congressional trust and blank checks were misplaced. And the president's sad attempts to explain a policy shrouded in secrecy have only undermined his credibility. Presidential credibility is an important thing. In wartime, it is essential. Bush's own secrecy has helped destroy it, and, thereby, the rationale for war. Last week, for example, the president insisted that "we do not torture." It was a bold statement from someone Americans need to trust in wartime. It's also patently untrue. Last week, for example, we discovered that the CIA operates several "black sites" for terror suspects in former Soviet camps in Eastern Europe. Among the techniques authorized for the CIA to use against them is "water-boarding", where inmates are plunged or drenched in water to the point of drowning. This is repeated until a confession is forced. According to a Pentagon-commissioned report, this technique was used on one detainee in Guantanamo on seventeen occasions in one month, and was still legally not "torture," according to Bush administration lawyers. Hence the president's carefully parsed statement. His strained, legal definition is as absurd as his predecessor's definition of "sexual relations." And it is of infinitely graver moral import. Free speech? In the United States, the First Amendment protects it. But the investigation that indicted Scooter Libby has chilled the press's ability to uncover secret policies the government doesn't want us to know, in ways that we may come to regret. In Britain, new laws forbidding defamation of someone's religion are an affront on one key freedom that distinguishes us from theocracies - the right to challenge theological dictates. There are already laws banning speech that amounts to incitement to violence. The new, unnecessary law is Sharia-lite. If we are fighting theocratic enemies, why are we simultaneously inching closer and closer toward them? As for detention without charges or trials, Britons live in a free country compared with America. The government has now detained one American citizen for three years without bringing charges against him. He is now awaiting Supreme Court review. The Court has also agreed to revisit the constitutionality of military tribunals, and whether they meet basic Anglo-American principles of justice. This process takes time in the American system, and there are legitimate debates about the powers of the presidency in wartime. But we are mercifully beginning to see the self-correcting strength of constitutional democracy. But this correction is fragile and needs more support from the pro-war camp. What makes today's situation uniquely worrying is that, unlike previous wars, the current one has been defined with no discrete enemy and no foreseeable end. It is, in effect, a new and permanent reality, in which the executive has assumed powers only previously designed for and justified by brief emergencies. The balance of individual freedom against national security is therefore at risk of being permanently altered in a way not available to Lincoln, who briefly suspended habeas corpus, or Roosevelt, who interned Japanese-Americans. Worse, the Bush administration is well aware of this and unabashed. The nominations of John Roberts, Harriet Miers and now Samuel Alito to the Supreme Court prove it. Roberts has a paper trail of deferring to the president on the question of military tribunals. Miers was enmeshed in the White House's legal decisions to permit abuse of detainees. Alito is a strong defender of executive prerogative. Bush is quietly re-making the Court to remove one, vital check against his and successive presidents' powers. All the more reason for the Congress, and the press to keep the pressure up. I'm not suggesting that no liberties should be surrendered to counter the real threat of terror. I'm arguing that any surrender of freedom must be clearly justified in each case and openly discussed. I'm saying the courts and parliament and Congress are not threats to the war, but a critical part of making it work. Freedom dies by increments; and a freedom-loving people must be especially vigilant in wartime. Lincoln understood this as profoundly as Churchill. Like Churchill, his record was not perfect, but he grasped what he was fighting for, even as his own country was melting down in a brutal civil war. Asked by a supporter to suppress a hostile newspaper at the height of the conflict, he replied: "I fear you do not fully comprehend the danger of abridging the liberties of the people. Nothing but the sternest necessity can ever justify it. A government had better go to the extreme of toleration, than to do aught that could be construed into an interference with, or to jeopardize in any degree, the common rights of its citizens." If Lincoln could say this in the middle of a national insurrection, why cannot Bush and Blair say it today? November 13, 2005, The Sunday Times. copyright © 2000, 2009 Andrew Sullivan |
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