Roger Cohen - N.Y. Times (November 27, 2008)

November 27, 2008

Op-Ed Columnist
A Command of the Law
By ROGER COHEN

It’s Thanksgiving. I’m thankful for many things right now, despite the stock market, and first among them is the fact that the next U.S. commander in chief is a constitutional law expert and former law professor.

Before I get to why, allow me to add two other reasons for thankfulness. The first is that Barack Obama is a man of sufficient self-confidence to entrust the critical job of secretary of state to his former rival, Hillary Rodham Clinton. She has the strength and focus to produce results.

The second is that he’s a man of sufficient good sense to retain the remarkable Robert Gates as defense secretary.

President Bush had one overriding criterion in choosing his inner circle: loyalty. The result was nobody would pull the plug on stupidity. Obama wants the kind of competence and brainpower that challenge him. The God-gut decision-making of The Decider got us in this mess. Getting out of it will require an Oval Office where smart dissent is prized.

But back to the law, which is what defines the United States, for it is a nation of laws. Or was until Bush, in the aftermath of 9/11, unfurled what the late historian Arthur Schlesinger Jr. called “the most dramatic, sustained and radical challenge to the rule of law in American history.”

There is no need to rehearse here the whole sordid history of the Bush administration’s work on Vice President Dick Cheney’s “dark side:” the “enhanced” interrogation techniques in “black sites” outside the United States justified by invocation of a “new paradigm” that rendered the Geneva Conventions “quaint.”

When governments veer onto the dark side, language always goes murky. Direct speech makes dirty deeds too clear. A new paradigm sounds bland enough. What it meant was trashing habeas corpus.

The facts speak for themselves. This month, almost seven years after detainees began arriving at Guantánamo Bay on Jan. 11, 2002, a verdict was handed down in the first hearing on the government’s evidence for holding so-called unlawful enemy combatants at the U.S. naval base in Cuba.

Yes, this was the first hearing in a habeas corpus case, so long has the legal battle been to get to this point, and so stubborn has the administration been in seeking to keep Guantánamo detainees out of reach of civilian courts.

Judge Richard J. Leon of Federal District Court in Washington ruled that five Algerian men had been unlawfully held at Guantánamo and ordered their release. He said: “Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.”

Of the 770 detainees grabbed here and there and flown to Guantánamo, only 23 have ever been charged with a crime. Of the more than 500 so far released, many traumatized by those “enhanced” techniques, not one has received an apology or compensation for their season in hell.

What they got on release was a single piece of paper from the American government. A U.S. official met one of the dozens of Afghans now released from Guantánamo and was so appalled by this document that he forwarded me a copy.

Dated Oct. 7, 2006, it reads as follows:

“An Administrative Review Board has reviewed the information about you that was talked about at the meeting on 02 December 2005 and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan. Your departure will occur as soon as possible.”

That’s it, the one and only record on paper of protracted U.S. incarceration: three sentences for four years of a young Afghan’s life, written in language Orwell would have recognized.

We have “the deciding official,” not an officer, general or judge. We have “the information about you,” not allegations, or accusations, let alone charges. We have “a decision about what will happen to you,” not a judgment, ruling or verdict. This is the lexicon of totalitarianism. It is acutely embarrassing to the United States.

That is why I am thankful above all that the next U.S. commander in chief is a constitutional lawyer. Nothing has been more damaging to the United States than the violation of the legal principles at the heart of the American idea.

As well as closing Guantánamo, Obama should set up an independent commission to investigate what happened there, as suggested in a fine recent report, “Guantánamo and its Aftermath,” from the University of California, Berkeley. Only then will “deciding officials” become identifiable human beings who can, if necessary be judged.

Obama should also ensure that former detainees receive an apology and compensation. An American official showing up, envelope in hand, at some dusty Afghan compound and delivering U.S. contrition and cash to a man whose life has been ravaged by U.S. abuse, will in the long term make the United States safer.

Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.