Deborah Pearlstein is a visiting research scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. From 2003-2007, she was director of the U.S. Law and Security Program at Human Rights First.
While the administration has hurried to interpret George W. Bush's re-election as a ratification of his political approach to the war on terrorism, the president's legal approach to that effort has so far suffered a rather thorough repudiation in the courts and in the court of public opinion. With the decision on November 8 by a federal court in Washington, D.C., ordering a halt to military commission trials under way at Guantanamo Bay, Cuba, the administration endured another defeat in its attempt to assert sweeping powers to detain, interrogate, and prosecute individuals caught up in the name of anti-terrorism.
With most of the nation's eyes on a tight presidential race heading into its final days, it is hardly surprising that the growing allegations of torture and abuse of detainees carried out by U.S. authorities have largely fallen off the political radar screen. Neither campaign has much interest in saying anything that could be seen as negative about our troops, the vast majority of whom have indeed performed admirably. Likewise, the last topic any member of Congress facing re-election wants to discuss is how to be more “sensitive” to the laws against torture in the “war on terrorism.”
While human-rights observers have rightly focused on terrorism-related developments in the U.S. criminal-justice system, the trend toward limited procedural protections for defendants and a shrinking judicial role well predates the September 11 attacks. Indeed, security has been a central justification for rights-limiting changes in the criminal-justice system for decades.
Almost as soon as the planes crashed into the twin towers, scholars, pundits, and politicians began asserting that our most important challenge as a democracy now is to reassess the balance between liberty and security. As Harvard human-rights scholar Michael Ignatieff wrote in The Financial Times on September 12, “As America awakens to the reality of being at war -- and permanently so -- with an enemy that has as yet no face and no name, it must ask itself what balance it should keep between liberty and security in the battle with terrorism.”
When the Supreme Court heard oral arguments on April 28 in the cases of detained U.S. citizens Jose Padilla and Yaser Esam Hamdi, Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement how the Court could be sure that government interrogators were not torturing the detainees. Clement was indignant. You just have to “trust the executive to make the kind of quintessential military judgments that are involved in things like that,” he told the Court. Later that evening, CBS News released the first photographs of torture at Abu Ghraib.