As the debate continues over rules for the trial and interrogation of suspected terrorists, we need to understand what's at stake: both our national security and our national soul.
Opinions on issues involving detainees are not neatly divided along ideological lines. Famed liberal law professor Alan Dershowitz has raised the possibility of having judges issue "torture warrants" in the face of imminent terrorist threats. Senator John McCain, the conservative Republican of Arizona, has taken a firm stance against what is euphemistically known as "coercive interrogation."
Nor is this an issue of power-hungry fascistic sadists on one side and noble-minded humanitarians on the other. Millions of decent people believe that we live in desperate times that call for desperate measures. But that doesn't make them right. Throughout history, people with good intentions have done a lot of harm.
One stark reminder of the danger of abuses in the war on terrorism is the case of Maher Arar, a Syrian-born Canadian citizen. Arar was detained last year at John F. Kennedy International Airport in New York on suspicion of terrorist ties and taken to Jordan and then Syria, where he alleges he was brutally tortured during 10 months of detention. His arrest may have been based on mistaken information given to US authorities by the Canadian police. Those who invoke threats to our survival should ask themselves whether this is the kind of thing we want on our conscience.
Conservative blogger Michelle Malkin deplores the fact that in Indonesia, three Christian men accused of terrorist acts toward Muslims were sentenced to death after a trial in which human-rights activists say they were denied due process. Yet Malkin and many others on her side are likely to decry concern with due process for terrorist suspects in American custody as namby-pamby liberalism. Admittedly, no suspects held by the United States have been executed. But indefinite detention and brutal interrogation techniques without due process are nothing to be proud of, either.
The unease over detainee issues in conservative ranks was demonstrated by the initial rebellion among some Senate Republicans against the White House, but it is also evident among the commentariat. Recently, I attended a symposium at the conservative American Enterprise Institute on the state of national security.
The day's last panel, on law and order, was made up of three war-on-terrorism hawks: Heather Mac Donald, a researcher and writer at the Manhattan Institute; former deputy attorney general John Yoo, and Cornell University law professor Jeremy Rabkin.
All three deplored what they considered an excessive hysteria about the maltreatment of detainees resulting both from knee-jerk hostility to President Bush and from liberal softness. All three stressed that we are in a perilous situation, facing a faceless and stateless enemy with no visible command and no combatant uniforms. Our response, they argued, should be viewed in the context of this threat.
Yet it was Mac Donald, no one's idea of a softie, who made an important and alarming point: "The very fact that detainees are violating the rules of war, that they are not wearing uniforms or any identifying insignia, makes the possibility of factual error in who you pick up much more severe than when you are capturing a traditional uniformed enemy."
In her view, the administration should have put "a lot more due process early on to make the factual determination" that we are holding the right people (though, she added, by military rather than civilian judges). She declared that human rights activists "have it right when they complain that detainees in the war on terror are facing the prospect of indefinite detention," and dismissed as "disingenuous" the assertion that every war is of indefinite duration when it starts.
Mac Donald's argument was primarily pragmatic: measures to safeguard the innocent, she said, would have boosted support for the war on terrorism both at home and abroad. But the moral issues are equally important.
Several speakers at the event noted that in times of national danger, America has always curtailed civil liberties in ways that would have been unacceptable otherwise (such as the internment of Japanese-Americans ). Yet, if anything, that's an argument for greater vigilance against embarking on that road—paved though as it is with good intentions.