These days, whenever you hear someone talking about the
“price of freedom,” it is almost always expressed in a
body count.
My government tells me I have to accept a certain number of
American casualties and Iraqi collateral damage (read: dead
civilians).
“This is wartime,” they seem to say, “and this
is the price of freedom.”
But that’s not all this war on terror has cost this
country; the U.S. has suffered some collateral damage of its own
““ damage which is all the more ominous because it is an
assault on the basic tenants of our criminal justice system. Every
time I hear Americans question why there are trials for Saddam
Hussein and Zacarias Moussaoui and why we don’t just
“shoot them both in the head,” it makes me want to move
to Norway.
The Founding Fathers thought that the ideas of habeas corpus,
due process and a fair trial were so important that they placed
them in the Bill of Rights. Benjamin Franklin said “it is
better (that) 100 guilty persons should escape than that one
innocent person should suffer.” As such, this country
operates under the assumption that a person is innocent until
proven guilty.
This is why much of the domestic and international community
views the situations of detainees in Guantanamo Bay in Cuba and
Bagram in Afghanistan with such anger and resentment. While the
very idea of holding “detainees” without trial for
nondescript lengths of time seems so patently, plainly illegal, I
was surprised to find that it is not.
Simply, the power to indefinitely detain based on suspicion is
legal because President Bush bestowed this power upon himself.
On November 13, 2001, Bush issued Executive Order 66 FR 57833
which, citing imminent threats and “further terrorist
attacks,” says in section 1(e) that it is necessary for
individuals to be detained. It then goes on to say in section 1(f)
that it “is not practicable to apply in military commissions
under this order the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the U.S.
District Courts.”
What is being done in Cuba and Afghanistan is legal because Bush
created an executive order decreeing it to be. It doesn’t
make any sense that this is allowed to happen. Even with special
“wartime” powers, there is no congressional or
judiciary check on the military’s ability to indefinitely
detain whomever it wishes. This is a classic case of civil
liberties clashing with national security, one that again asks the
question: What are we willing to sacrifice in the name of
safety?
There are similar accounts, as reported by the Gulf Times, of
Hussain Mustafa ““ an innocent man detained for two years in
Afghanistan and Cuba. Like many of the stories we’ve heard,
Mustafa suffered physical beatings and sexual abuse. Upon release,
he was given a certificate stating that he “determined to
pose no threat to the U.S. armed forces or its interests in
Afghanistan” and a pair of white canvas sneakers before his
wife informed him that their son had died during his detention.
I’m sure that many of the detainees are guilty, but I
can’t help but wonder how many of them are innocent, because
there are no trials, and mistakes are made. The fact that this does
not happen to Americans does not lessen the fact that the U.S. is
doing it. The idea that a person is innocent until proven guilty is
at the heart of the American system of law, and it’s
disconcerting to see it pushed aside with such ease.
This is why I cringe every time I hear people say that the
trials of Saddam Hussein or Zacarias Moussaoui are meaningless.
They are incredibly meaningful. No one actually expects either of
them to be found innocent, and I can’t even imagine a
“not guilty” verdict for Saddam.
But although they feel like theater, these trials are the
defense of the ideal that the U.S. can still act like a great
nation, that we can give meaning and example to vague, overused
words like “freedom” and “justice.”
The concept of the “price of war” is a value
judgment, and as such, everyone has to make up his or her own mind
as to how much he or she is willing to pay. But I would ask these
people to think about the ideas that have been sacrificed to this
seemingly endless war.
We can take everyone we suspect of being a terrorist and
summarily shoot them in the head if we want to, but we had better
be prepared to shred the constitution while we’re at it.