Stephen M. Walt

American values and American justice

American values and American justice

When I got out of the shower this morning, my wife was waking up to NPR. Her first comment to me was this: “I never thought I would hear an NPR reporter say those words.” What had she just heard?  A report that the Obama administration was “under fire” for defending the rights of terrorist suspects.

She wasn’t complaining about NPR’s coverage, mind you, she was commenting on the bizarre situation where anyone — let alone a president and his administration — could be “under fire” for defending a core principle of the American justice system. The Founding Fathers would be spinning in their graves, about as fast as a nuclear centrifuge. They understood the dangers of giving executives arbitrary authority to arrest, detain, coerce, and try suspects (i.e., those whom authorities think might have committed a crime but whose guilt has not yet been determined). So suspects — all suspects — are accorded certain legal rights.

I’m not a lawyer and so I don’t normally weigh in on legal issues, including the continuing debate over torture, the use of civilian vs. military tribunals to try suspected terrorists, and the other aspects of post-9/11 policy. As a matter of policy, however, the case for abandoning our normal criminal justice procedures strikes me as laughably weak.  As Andrew Sullivan, Glenn Greenwald, and others have noted repeatedly, the various Bush-era abuses (including torture, “preventive detention,” reliance on military tribunals) were a propaganda boon for our adversaries, and did not in fact lead to significant intelligence breakthroughs or other strategic benefits. And as numerous commentators have pointed out, the criminal justice system worked just fine in the case of Richard Reid (the Al Qaeda “shoe bomber”) and Ramzi Yousef (who planned the 1993 World Trade Center bombing and is now serving a life sentence without parole).  And on the issue of torture, top military commanders like David Petraeus agree.

The latest evidence, of course, is the guilty plea entered by Najibullah Zazi at his trial in New York City (yes, the very same New York city that supposedly couldn’t hold a trial for Khalid Sheikh Muhammed). Zazi was was arrested and charged with conspiracy, for plotting to detonate a bomb in the New York subway system. He was Mirandized and interrogated in the normal fashion (i.e., he wasn’t waterboarded). The result? He pleads guilty, and appears to be singing like a bird. Good thing we didn’t send him to Guantanamo, where he might have been tortured, and his evidence rendered either suspect or legally inadmissible.

The lesson here is that Americans ought to have more faith in our existing institutions. It’s a great paradox: we constantly tell the world how great our country is, how our values ought to be emulated, and how other states would be much better off if they re-made their societies in our image. But then something bad happens, panic sets in, and people conclude that those same precious values are in fact a fatal weakness that our enemies will exploit to bring us down. And the result is usually an embarrassing and shameful tragedy (like the incarceration of Japanese-Americans in World War II), for which we later have to apologize and make restitution.

Defenders of these abuses sometimes point out that Lincoln, Roosevelt, and other American icons were also willing to suspend core U.S. values in times of national emergency, and that the pendulum swung back once the danger is over. I would make three comments in response.

First, to the extent that this is true, it merely underscores the need for opponents of these policies to keep making the case against them. The pendulum won’t swing back if critics don’t explain why these policies are misguided, or if their advocates prove to be louder or more persistent.

Second, even if the pendulum does swing back somewhat, it may not go all the way. We may have abandoned water-boarding, for example, but the Obama administration has retained a number of other Bush-era policies, including preventive detention and extraordinary rendition. And we all know that once in place, many policies prove remarkably resistant to change. Moreover, executive power in the realm of national security has been growing steadily for the past century — and especially since the Cold War began — and it is not obvious to me that this has been a net positive. Third, it is worth remembering that former Vice President Cheney and key aides like David Addington were not advocating a temporary response to a new threat, akin to Lincoln’s suspension of habeas corpus during the Civil War. Rather, they saw 9/11 as an opportunity to pursue a permanent increase in executive power, a goal that they had been seeking for many years. (Never mind that they don’t seem very interested in a strong executive during this administration).  And I suppose we should be grateful that Bush’s many failures helped slow this power grab somewhat.

You might think a realist like me would be in favor of a strong executive, on the grounds that states in the dog-eat-dog world of international politics need a strong hand on the tiller of the ship of state. But realists also have a healthy appreciation for human frailty, and the tendency for those who possess great power to abuse it. Concentrating too much power in the executive is a good way to blunder into foolish wars, and it can even discourage the sort of open debate and discussion that (sometimes) helps democracies to avoid the fatal errors that authoritarian governments often make.

So have a little faith in our existing institutions, and stop trying to become more like the countries we normally oppose.