WHEN
THE LAST LAW IS DOWN
What does it mean to be an American? This may be a trite-sounding
question, but it is one that we have been asking for the whole
history of the United States, and it has more relevance than
ever in the age of globalization.
Europe,
for instance, seems to do little but debate its identity these
days. Tidy little garden-apartment nations, whose politics for
decades consisted of little more than just how much they should
expand the social-welfare state, now find themselves asking,
"What is a Frenchman? A Dane? A Dutchman?" as they
confront suddenly virulent, neo-fascist parties, launching one
assault after another on immigration, or the whole concept of
a European Union.
We in the U.S. have already established, albeit after much struggle
of our own, that an American can be anyone who pledges their
loyalty to the constitution of the United States, and the principles
and laws of democracy contained therein. This American idea—the
fact that we are a nation of ideas, and laws—would seem
to give us an immeasurable advantage in the world, and it has
already led to what was, overall, a remarkably mature, level-headed
reaction by the American people to the terrorist outrages that
took place last September 11.
Too
bad our government has not managed to display the same maturity.
Instead, it has sought to radically reinterpret our constitution—and
threaten thereby the one skein that holds us all together—by
suspending the right of habeas corpus even for American citizens.
The
case I am referring to—so far—is that of Jose Padilla,
the former Chicago street thug apparently turned Islamic warrior,
who was apprehended while trying to gather radioactive material
for the creation of a nuclear "dirty bomb."
I
write "apparently" because it is impossible to actually
know any of the above. That is the virtue of habeas corpus,
one of the supporting pillars of the entire, Anglo-American
legal tradition. The accused must be brought before the bar
of justice; he cannot be simply chucked into the king’s
dungeons to rot idefinitely, simply on the say-so of some official.
This was one of the basic rights that our forefathers fought
for in the Revolution.
The
Bush administration, and particularly its crusading attorney
general, John Ashcroft, seem to feel that the right to a speedy
trial is a more malleable thing. Mr. Padilla’s arrest was
announced at a politically expedient moment, just as investigations
picked up steam regarding the gigantic intelligence failure
that allowed 9/11 to take place—and only then, we were
told, because Padilla was now to be "turned over to the
military." Later, we were informed—again, without
benefit of judicial finding—that Padilla, an American citizen,
was to be considered an enemy soldier, and kept in military
custody until the president deemed that our current war against
terrorism was over.
Turned
over to the military. Kept in custody until the president decides
that the war is over. How strange these words sound in the lexicon
of our democracy!
Can
a democracy fight a war and still maintain its constitutional
principles? As I wrote in this space some months ago, this right
has rarely been suspended before, and when it has—most
notably during the Civil War—the results have generally
been disastrous. The suspension of any part of our constitution
is not only wrong, it is a mistake, always serving to do more
to undermine our country than anything or anyone it may have
suppressed.
In
a thoughtful response to this argument, published in the
Correspondence column of our July issue, Retired Navy Commander
Gerald W. McDonald argued that the peculiar conditions of our
present struggle against international terrorism made the whole
idea of open trials unfeasible.
"Prosecutors
will have to present evidence of their crimes, which will necessarily
involve identification of the methods by which it was gathered,"
he wrote. "Such sources must be protected at all times.
This protection will require closed courts and sealed testimony."
The
commander makes a good point, but I think it is contradicted
by another example from our history, in a time of great crisis
and turmoil, when two American spies who served a much more
formidable foe than Osama bin-Laden or Al Qaeda will ever be,
were indeed convicted in open court of trying to acquire an
even more deadly weapon than the one Jose Padilla was supposedly
trying to put together.
The spies in question were Julius and Ethel Rosenberg, and as
you probably know, they were arrested, tried, convicted, and
executed at the height of the Cold War for helping to steal
the secret of the atomic bomb for Josef Stalin and the Soviet
Union.
It
is hard to cite the Rosenberg trial as a good example of anything.
The circus-like atmosphere the press created, the excessive
coaching of government witnesses, the flimsiness of the case
against Ethel Rosenberg, and a defense that was so maladroit,
in the words of Ronald Radosh and Joyce Milton, authors of The
Rosenberg File, "as to border on malpractice"—all
combined to make this less than the finest moment in American
jurisprudence.
The
death penalty itself seems to have been employed mostly as a
"lever" to make one or both Rosenbergs talk. Right
up to the moment of execution, FBI agents were ready with a
list of questions that J. Edgar Hoover wanted asked of Julius
Rosenberg should he finally decide to break; one of them read,
"Was your wife cognizant of your activities?"
This was an appalling admission of the state’s willingness
to electrocute an individual whose guilt it could not ascertain.
It became downright shameful when it was revealed that presiding
Judge Irving Kaufman had numerous, improper communications with
the government over the sentence. Judge Kaufman would piously
insist that he had wrestled with his conscience and prayed for
guidance. The ever-odious Roy Cohn, then the assistant U.S.
attorney on the case, sneered that "the nearest Irving
got to a synagogue was the phone booth outside the courthouse.
It was not God that concerned him. He asked me how a double
death penalty would play in the New York Times." Cohn championed
the death penalty—lest their be an outcry against the "disloyalty"
of American Jews.
None
of this is a pretty picture. But imperfect as it was, the Rosenbergs
got their trial, and today few who have studied their case doubt
their guilt. Moreover, they were convicted in good part by the
presentation of classified material on the making of atomic
weapons, presented in open court. By sifting carefully through
each piece of scientific evidence stolen by the Rosenberg spy
ring, the prosecution was able to make its case and still keep
its nuclear secrets. The government was even able to keep secret
the "Venona cables," the intercepted Soviet messages—and
the broken Soviet code—that had led them to the "atom
spies" in the first place.
Flawed
trials are one of the inherent risks of a democracy. Secret
arrests and indefinite military detentions are not, and the
moment we move from being a government of laws to a government
of men our entire existence as a nation—much more than
that of any European ethnic state—is placed in jeopardy.
No
doubt, many readers do not believe that George W. Bush or John
Ashcroft will ever abuse the powers they have so boldly arrogated
unto themselves. I would respectfully ask if they would have
placed the same trust in a Bill Clinton, or a Janet Reno, or
even an Al Gore.
In
A Man for All Seasons, Robert Bolt has his historical recreation
of Sir Thomas More confront his young protégé,
Roper, who asserts that he would "cut down every law in
England" in order "to get after the Devil." More
asks him in turn, "Oh? And when the last law was down,
and the Devil turned round on you—where would you hide,
Roper, the laws all being flat?" It is a warning we would
all do well to consider before we flatten any more of our constitution.
