On April 28 the subject of torture was discussed in oral arguments before the Supreme Court. The context was not the abuse of Iraqi prisoners by American soldiers in the prison complex at Abu Ghraib. The photos of those events would not be released for another eight hours, by 60 Minutes II. Rather, the context was the detention of two US citizens, Yaser Hamdi and José Padilla. The Bush Administration, in the person of Paul Clement, Deputy Solicitor General, was asserting the President’s right to designate, at his sole discretion, US citizens as “enemy combatants” (a legal neologism), and then imprison them indefinitely without the right to see counsel or to have any other communication with the outside world. The lawyers for the defense were arguing that the President’s claim destroyed one of the most ancient and fundamental rights of Anglo-Saxon jurisprudence, habeas corpus, which requires, in the words of the Magna Carta, of 1215, that “no free man shall be taken or imprisoned…except by the lawful judgment of his peers or by the law of the land.”
At one point, Justice John Paul Stevens asked Clement what assurances he could give that the citizens detained under his doctrine of unfettered executive discretion were not being tortured. Clement answered that the courts and the country must simply have confidence that the executive, in obedience to its treaty obligations, would never do such a thing. (He failed to note that Defense Secretary Rumsfeld had specifically exempted prisoners in Guantánamo from protection by the Geneva Conventions.) Clement opined that information given under torture was not reliable, and so “the judgment of the people who do this, as their responsibility, is that the way you get the best information from individuals is that you interrogate them, you try to develop a relationship of trust.”
Asked by Justice Ruth Bader Ginsburg whether, in keeping with habeas corpus requirements, a citizen should not “have a right to bring before some tribunal himself, his own words, rather than have a government agent say what was told to him,” Clement answered that in the Administration scheme the interrogation of the detainee was itself the opportunity.
That very evening, the issues raised in the abstract legal discussion before the Court sprang to shocking life in the pictures from Abu Ghraib, giving everyone a chance to judge just how much due process such interrogations supplied. It seemed unlikely that the naked, bound, hooded prisoners heaped in a pile were being given a good opportunity to prove their innocence, or that the naked prisoner facing snarling attack dogs, which soon were loosed upon him, was enjoying the protection of international treaties signed by the United States. Such were the revolting deeds to which the high-sounding doctrine led in practice.
But (someone might imagine) those prisoners were Iraqis; Americans would never do such things to other Americans. This proposition, too, had in a way been tested. Many of the guards at Abu Ghraib were chosen precisely because they had “worked as prison guards or corrections officials in their civilian jobs,” in the words of the report on Abu Ghraib by Maj. Gen. Antonio Taguba. Two had been charged with abusing prisoners. Also, many of those swept up in the detentions in the United States after September 11 were abused, as a Justice Department report by the Inspector General has shown. The metastasizing offshore gulag (yet another form of “globalization”) and the onshore one, with its 2 million inmates, are cross-fertilizing. It would be as deluded as it would be shameful to hope that when the executive branch unleashes its torturers, foreigners alone will be the victims.
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What is happening concretely in the cellblocks is also happening at the level of developments in fundamental law. The pattern of corruption is a very old one, well-known to the Founders of this nation, who had carefully studied the example of Rome: A powerful republic gives birth to an empire, which in turn destroys the republic. The emperor who rules by force abroad develops a taste for ruling his own people in the same manner.
The Administration’s across-the-board hostility to the constraints of law, domestic and international, is not accidental. The constitutional structure that is the backbone of the republic is a stumbling block to the empire. The republic requires a single standard, to which all are subject–the law. But the empire requires a double standard–one set of regulations for others, and another set, or none, for the imperial ruler. In the imperial conception, “law” is a set of rules dictated by the ruler for everyone else to obey. In this conception, other countries are not permitted weapons of mass destruction, but the United States may have them (and use them to stop the others from getting them). Other countries’ troops must obey the Geneva Conventions, but the United States is exempt. Other countries must wage war only defensively; the United States may do so pre-emptively.
The imperial logic was on full display in the Supreme Court. In a brief on the Guantánamo detentions, eight former federal officials argued that “if no constitutional rights applied to offshore detainees, then the government would be free to create a parallel system of extraterritorial courts and extraterritorial prisons to punish extraterritorial crimes without legal oversight or constraint.” Soon a portrait of just such a system appeared in the media. Indeed, just before the worst of the known abuses occurred, the commander of Guantánamo had traveled to Iraq to “Gitmo-ize” it (Gitmo-ize surely being one of the ugliest words ever coined).
Clement had asserted that the President’s prerogatives to imprison foreign nationals without judicial review, foreign or domestic, flowed from Congress’s authorization to the President to use “necessary and appropriate force” in Afghanistan. But Justice Stevens thought to inquire whether those powers would expire when the war was over. The answer was no. The President’s power was “inherent.” In peace as in war, the empire required its gulag.
The lesson to the world and to Americans was the same: We decide, you obey. This has been the message of the Bush Administration to citizens of the United States, just as it is the message of the prison guards at Abu Ghraib to those under their control. It is a message that almost all the peoples and governments of the world have bitterly rejected. Whether the American people will reject it also is something we’ll find out on November 2.
