Strong opinions, weakly held

Our abandonment of the rule of law will continue

Yesterday a federal court acquitted one of the men accused of the 1998 embassy bombings in Tanzania and Kenya of 11 of 12 charges against him, including every charge of murder. He was convicted on one charge of conspiracy, which carries a sentence of 20 years to life. He probably would have been found guilty on more charges had the judge not ruled out all evidence and testimony obtained through the use of torture. Needless to say, plenty of people are arguing that this illustrates the flaws of trying terrorists in civilian court, rather than the problems inherent in torturing accused criminals in a society that claims to operate under the rule of law.

As Glenn Greenwald points out, this was a show trial anyway, since the President claims the right to continue to imprison prisoners like Ahmed Ghailani under the laws of war, regardless of the outcome of their trial. So we convicted him, but we weren’t going to release him no matter what.

I think the question many people who care about civil liberties ask themselves is how we got here. We knew that the entire post-9/11 era was utterly lawless under the Bush administration, but we can all remember that Barack Obama promised to change all that when he became President. After two years of an Obama presidency, we now know that very little has changed.

Yesterday I read GQ’s profile of Attorney General Eric Holder. The writer seeks to understand how Holder could go from principled defender of civil liberties to being an active participant in the continuation of the abuses of the Bush administration. In the end the article shows how choices made in the past restrict the options that are available today.

That’s not to excuse Eric Holder or Barack Obama. They’ve chosen to abandon the principles they once defended. It is to say that our problems are much bigger any particular person, even if they’re the President. Eric Holder’s choice is to compromise or resign. The options available to Barack Obama are to compromise or to throw away everything else he may want to accomplish as President.

Nearly the entire mechanism of federal government became invested in indefinite detention without charges, torture, and the exclusion of captives from civilian courts, and so the resistance to changing those practices and admitting fault is comprehensive. Congress refused to fund the effort to shut down Gitmo. Career lawyers at the Justice Department are resistant to any efforts to punish their current and former colleagues who conjured up the legal justifications for torture and indefinite detention. The military has never welcomed accountability to civilian authorities for wartime conduct. Most importantly, most voters don’t seem to much care about any of the abuses that have occurred.

The Eric Holder profile mentions guidelines for trying detainees that seem reasonable to me, assuming that in both cases, the pre-War on Terror rules of procedure and evidence are followed:

The guidelines that emerged from the task force last summer erected clear rules: If the crime is committed against a civilian target on U.S. soil, the case goes to civilian court; if the crime is against U.S. troops overseas, the case goes to a military commission.

If we followed those rules and actually released those defendants who were found not guilty, we’d be on the road to recovery. But of course, one problem we’ve found in releasing prisoners is that we’ve had a hard time finding anyone to take those prisoners who will agree not to torture and kill them.

My point is this: we are so far down the road of selling out our purported national values that it is likely to be a generation before we even start to make a real effort toward recovering them. Life goes on with the knowledge that our craven impulses dominate our noble ideals.


  1. Good post. I agree with you on pretty much every issue. It makes me feel as if the terrorists won a major victory, that is they changed the very nature of America. It makes me sad.

  2. The terrorists had nothing to do with it. We would have done this to ourselves in any case. Civilization has lost its fan club.

  3. Listening to a live version of “America” by Simon & Garfunkel while reading this important commentary feels right.

    But what I really want to do is ask President Obama, face to face, is why are you not delivering on the promises made in your campaign? How did “Yes, we can,” morph into “Yes when its possible without, I don’t know, embarrassing anyone or having to put anyone on the spot or such”?

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