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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: December 6, 2009 03:12 PM

When Principle and the Practical Conflict, Which Should Prevail?

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When it comes to decisions about releasing photos of torture or prisoner abuse, closing Guantanamo, indicting persons who authorized or directed torture, holding civil trials for alleged terrorists and excluding abortion coverage from the health care legislation, principle comes into direct conflict with what is practical.

Can there be any doubt that a federal health insurance plan should include and not exclude coverage for abortion. Abortion is legal in this country. How can a large segment of the population be excluded from coverage for a particular procedure? Could there be an amendment to exclude all gays and lesbians or coverage for AIDS merely because of the moral or religious beliefs of a segment of the population? But the exclusion will occur, because health care cannot pass without it! That is the practical overcoming principle at its worst.

Can there be any doubt that disclosing evidence of torture by representatives of our government is the principled thing to do? We live in a free society that cherishes free speech and transparency. The arguments against disclosure are all practical. It will enrage our enemies and increase their recruits, cost the respect of our allies and diminish our world image and possibly affect the morale of our troops.

Can there be any doubt that the closing of Guantanamo is the principled thing to do? It has become the symbol of our aggression and abuses. Holding prisoners for years without charges, without representation, without hearings, torturing some is contrary to everything we stand for. But where will we put them? Does moving them to the U.S. mainland increase the risks of escape or retaliation?

Can there be any doubt that those top level officials who authorized and directed torture should be indicted and tried? But they are not and will not be. Such action would be viewed as political and vindictive. It would create a dangerous precedent of one administration prosecuting another. It would further divide the country.

Can there be any doubt that affording alleged terrorists a full and fair trial in a civil court is a matter of principle? But such trials are opposed for fear of the risks they pose of attack or retaliation, the platform it might give the defendants, the secret information it might disclose and the possibility of acquittal and release on American soil. And what of those who are guilty who may be acquitted solely because they have been tortured?

We don't hear much of "Give me liberty or give me death!" in the halls of Congress these days. I heard a Republican senator justify a request that the entire health care bill be read (2000 pages plus) on the grounds that the "public has the right to know what is in the bill," when in reality it was just a stalling tactic. Currently with principle constantly giving way to the practical, and the public good constantly giving way to private interests, compared to how we began as a nation, I wonder: what is the opposite of "Founding Fathers?"