There’s more than one American fighting for the Islamic State in Iraq and Syria, and if they should be killed on the battlefield, that is the risk they took in attaching themselves to a despicable cause. But, one has recently been captured alive. Besides a brief acknowledgment that he’s now in American custody, and the confirmation of his status by the Red Cross after they were able to visit him last week, there has been not a word further about who he is, where he is, or what the government plans to do with him. The measure of our nation and the strength of the ideals which we purport to hold will be proven by our treatment of this captive.
It is all too easy to dismiss our adversaries as inhuman beasts, and thereby discard the idea that they deserve any protection at all. However, as Robert H. Jackson remarked when preparing to judge the most notorious criminals the world had ever seen at Nuremburg – “even in victory and when stung by injury,” that we may “stay the hand of vengeance and voluntarily submit [our] captive enemies to the judgement of the law is one of the most significant tributes that Power has paid to Reason.” The law which protects even the least among us best protects all of us.
This is not always an easy principle to remember. During the height of the bitter Algerian war, Jean-Paul Sartre reflected on the dark days of the German occupation of France. While the Gestapo were working their tortuous methods “in the Rue Lauriston,” he wrote, “Frenchmen were screaming in agony and pain: all France could hear them.” He remembered in disbelief that in those days the whole of the free world was united in outrage with sympathy for the victims, and that while “the outcome of the war was uncertain and the future unthinkable … one thing seemed impossible in any circumstances: that one day men should be made to scream by those acting in our name.” Nonetheless, France debased itself to the methods of its former abuse by torturing Algerians and other opponents of their colonial system.
Sartre had thought that such an inversion was impossible. But, in confronting its reality, he concluded that the pillars of humanism and law which he had hoped sheltered liberal democracy had no strength in themselves except that which was lent by the people who were willing to defend them. It was not only Algerian rebels who were victimized, but bystanders as well and even metropolitan French men and women who fell astray of violence which had slipped free of the restraint of law, and could no longer distinguish friend from enemy or justice from injustice.
The point is that torture, indefinite detention, and the lawlessness which they entail are not targeted weapons. They are arbitrary exercises of power of the sort which James Madison warned “poisons the blessings of liberty itself.” Our nation has become great and continues to grow because of our resolution not to be ruled, but rather to rule ourselves through public law that depends not on the whims of any individual. It’s an aspirational and unfinished ideal, but in contrast to that which would carve out endless exceptions in the name of necessity, the security which rigorous respect for the rule of law brings cannot be matched. The danger of tolerating injustice is that any method which might now be levied against one’s enemies will in time be turned against you. As Sartre concluded, when arbitrariness rules, “anybody, at any time, may equally find themselves victim or executioner.”
This is not an abstract lesson, or a point made for the sake of philosophy alone. When the American people were asked to support war half-way around the globe against Afghanistan and later Iraq, we were promised that our nation was fighting to defend freedom and democracy against the tyrannies of fundamentalism and dictatorship. Speaking before Congress nine days after the September 11th attacks, President George Bush lamented that “Afghanistan’s people have been brutalized, many are starving and many have fled. Women are not allowed to attend school. You can be jailed for owning a television. Religion can be practiced only as their leaders dictate. A man can be jailed in Afghanistan if his beard is not long enough.” He promised that our war would be one waged against terror.
Yet, to fight it we deployed terror of our own. At Guantanamo Bay and around the world, the American government drowned people and then revived them so as to be able to drown them again. As ever, this horror began with the conceit that it would be visited upon only the most deserving. But, as always occurs when the impulse of vengeance is loosed from the restraint of law, most victims were innocent. Of the 779 people detained at Guantanamo, only 5% were captured by American soldiers. The rest were handed over by local forces or civilians, many of them for no reason other than the bounties which were offered. Lawerence B. Wilkerson, Colin Powell’s former chief of staff, acknowledged as much, saying that “it did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance.” Many of these innocents, he said, “clearly had no connection to al-Qaida and the Taliban and were in the wrong place at the wrong time.” Even knowing this, we tortured regardless. Our failure arose from our fear, and we bowed to the promise that brutality could defeat brutality and that in our hands horror could vanquish terror.
This has not occurred. Terrorism continues to plague the world, and likely will for decades if not centuries to come. The wars in Afghanistan and Iraq grind on with no clear end in sight. The United States was not improved one bit by our retreat from the iron bedrock of principle. It is only because of the stalwart work of the lawyers and advocates who demanded that the law must treat all-comers equally, especially in the most trying circumstances, that our nation was not more badly degraded.
So that it may never happen again, the government must immediately clarify the status and identity of their American captive. They must afford him the rights that he is guaranteed by the Constitution so as to reassure all Americans of their strength. National security cannot be an excuse for failure in this regard, because bringing him home to face trial in a civilian court is an affirmation of our national security. What else are we fighting for, if not for the preservation of the rule of law and the Constitution against the sort of millenarial revanchism which would replace both with rule by force and arbitrariness alone?