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David Bromwich Headshot

The Day the Laws Came Back

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There are people who think rights were made only for good people, and laws were
made only for bad people. Americans were reminded twice last week that laws and
rights both matter because they apply to everyone.

On June 4, military judges dismissed the charges against two Guantanamo
prisoners. The charges of war crimes depended on the classification of the men
as unlawful enemy combatants whose war was itself a crime; yet the preliminary
tribunals had not used the word "unlawful," but classified the detainees merely
as "enemy combatants." The judges, Captain Keith Allred of the Navy and Colonel
Peter E. Brownback III of the army, knew the meaning of the dismissals. "A
person," said Colonel Brownback, "has a right to be tried only by a court which
he knows has jurisdiction over him."

"Unlawful enemy combatant" is a totalitarian coinage of inspired wickedness. It
takes the idea of a criminal who has the right to confront the evidence against
him; it combines that with the idea of the prisoner of war, captured for the
duration, whose name and condition are reported to the relevant outside
associates; and by collapsing the two, it yields a monstrous portmanteau, a
portable jail in words, "unlawful enemy combatant." Someone captured in the
field who is suspected of being a terrorist now becomes, by virtue of the
suspicion and the captivity, an agent of metaphysical evil whose name and fate
are removed from the visible world. The unlawful enemy combatant is held
without habeas corpus; he cannot confront the evidence; and he serves a
sentence of unspecified rigor and duration at the pleasure of his keepers. This
was the definition the military judges rejected.

It has been clear for some time now that the army is a force of prudence by
comparison with the revolutionists of the executive branch. Military judges,
too, are products of a tradition older than Blackwater. Their justice has not
yet been privatized, or brought into the family; the verdicts in these cases
could not be eased or strong-armed or turned back for re-evaluation.

The day after those decisions were handed down, I. Lewis Libby was sentenced
by Judge Reggie B. Walton to serve a prison sentence of 30 months for
obstructing justice and lying to a grand jury about his role in "outing" a CIA
agent anathematized by the vice president. Libby seems to have justified his
actions to himself by a mental reservation common in such cases. He was serving
a higher cause. Most of the mischief in the world comes from people who are sure
of their good intentions; and to hide the truth of a crime by throwing lies in
the path of those charged with discovering the truth, is substantially to harm
the laws.

The judges in the military and civilian cases only did what their jobs
required. But we are living in an extraordinary time, when to perform your
public duty asks a ponderable strength of heart. You are doing it in the face
of well-equipped sophists like those now angling for a pardon for Libby, who
say that his trial "criminalized political differences." It would be truer to
say that pardons of government felons have the effect of politicizing criminal
differences.

These cases have a common factor. The advent of the term "unlawful enemy
combatant," the perpetuation of Guantanamo, and the crime whose discovery Libby
prevented, all are closely linked to the Office of the Vice President. We
Americans haven't been allowed to hear much about that office: how many work
there for example, and their names and what jobs they do. It is a secret
institution without parallel. And yet, we know something about them from their
actions and their writings; such of their actions as have come to light, and
fragments of their memos and arguments. The little that we do know, as Patrick
Fitzgerald remarked, suggests the enormity of what we don't know.

In the councils of state, the law-abiding have been overtaken by the lawless
for the past six years. Last week offered a contrast. But really to recover the
Constitution and the Bill of Rights will depend on more than the decisions of
honest judges and the testimony of honest and shockable public servants like
James Comey and Daniel Iglesias. The energetic men of power who work in the
dark will fight back every inch.