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Two recent articles by Andrew C. McCarthy, a contributor to the National Review and a former chief assistant U.S. attorney who led the prosecution of Sheik Omar Abdel Rahman in connection with the first World Trade Center bombing, discuss related topics of great interest to those concerned about how we handle the war on terrorism. In one, McCarthy discusses the topics of torture, the laws of war, the laws prohibiting torture, the POW status, and finally torture warrants. In the other, McCarthy proposes a new court system which he calls a “national security court.” I admire the intelligence and clarity of McCarthy’s analyses (and can overlook his occasional pot-shots at leftists and “pie-in-the-sky libertarians”), and he nearly convinces me, but in the end I find flaws and disagree with his conclusions. Let’s look at them.
In his article on Abu Ghraib, McCarthy admits that “the whole crossroad of terrorism and law enforcement is complex,” but argues that terrorists “must be fought as military enemies rather than criminal elements” for three reasons: (1) “the justice system . . . is incapable on its own of neutralizing more than a tiny fraction of the hordes that oppose us,” (2) “judicial proceedings that target a relative handful of committed (and some suicidal) jihadists do not dissuade them; they have the opposite effect,” and (3) terrorist cases require us to “cut corners” constitutionally, which is not good for “our system’s majesty” because if we say “we treat terrorists just like we treat everyone else . . . everyone else is [in fact] being treated worse, and that is not the system we aspire to.” McCarthy concludes that “[b]y stretching precariously to assimilate [terrorists] while accommodating national security, the system succeeds only in warping itself.”
It’s a compelling argument. McCarthy adds that “it’s not fair that the barbarity of a few should be of such profound consequence, but anyone who thinks that ‘trust us’ carries the same assurances today as it did [before the revelations of Abu Ghraib] is hallucinating.” With powerful concessions to the principles often relied on by civil libertarians (ie., that “the sanctity and dignity of human life is a bedrock premise of civilized society, expressed at the Founding in the Declaration of Independence itself”), McCarthy nearly has his cake and eats it too. And his consequent suggestion becomes nearly irrefutable: that in order to prevent the dilution of our constitutional system of protections, we create a new parallel legal system just for terrorists, which he calls a “national security court.”
In McCarthy’s vision, this court would be constituted much like the Foreign Intelligence Surveillance Act (FISA) court , which was created in 1978 to regulate the process of spying on agents of foreign powers while they are in this country. McCarthy’s national security court would “be drawn from the talented pool of experienced federal judges, would develop an expertise in issues peculiar to this realm: classified information, the Geneva Conventions, the laws and customs of war, etc., and would have jurisdiction over matters related to the detentions and any resulting trials of alleged unlawful combatants.” A special unit would be formed in the Justice Department that “could then report to the Court the fact that an alleged unlawful combatant had been captured and was being detained, and certify both that hostilities were ongoing and that it was in the national-security interest of the United States that the combatant be held.” Again, it is compelling and McCarthy very nearly had me convinced.
However, there are two things wrong with this approach: first, it creates a parallel legal system exempt from constitutional protections, and, second, it forgets a primary condition of battle, visible combat. McCarthy’s argument is based on an unexamined premise: that terrorism is unlike any other “kind of war.” In some respects, he’s right. Terrorism is different. Terrorists, as McCarthy notes, “are significantly different both in make-up and goals from run-of-the-mill citizens and immigrants accused of crimes.” However, within his own definition of how different terrorists are, he includes an analogy to those they resemble:
“They are not in it for the money; they desire neither to beat nor cheat the system, but rather to subvert and overthrow it; and they are not about getting an edge in the here and now–their aspirations, however grandiose they may seem to us, are universalist and eternal, such that their pursuit is, for the terrorist, more vital than living to see them attained. They are a formidable foe . . . they have to be completely defeated, just like the Nazis, the Communists, and all tyrannically inclined, would-be hegemons.”
Of course, if terrorists are like Nazis, Communists, or other “tyrannically inclined, would-be hegemons,” we should know that both war and criminal prosecutions may be compelled, neither of which cancels out the other possibility.
Meantime, we’ve created another parallel legal system and have forgotten the prime criteria of visible combat. Let’s take these separately. In my upcoming book, The Twilight of Democracy: The Bush Plan for America, I note the existence of three parallel legal systems in this country: the criminal/civil (federal) system, the immigration court system, and the system created under the Foreign Intelligence Surveillance Act (FISA). Each of these systems has genuine, legitimate, important uses. The problem arises when the standards from one of the “secondary” systems (immigration or FISA) get mixed with those from the primary, federal system. Why is this a problem? Because what necessarily happens when these standards mix is that the protections in the federal system, ie., constitutional protections, are diluted and gradually eviscerated.
So then, what effect would the creation of an additional, fourth parallel legal system meant to handle the most difficult cases and kept outside of the Constitution have on democracy and the rule of law? I fear it would severely damage an already beleaguered society. And the question must be asked, too, if the laws of war and of treason, and the fundamental precepts contained in the Great Writ of Habeas Corpus are yet extant and applicable, why must we chuck them and create yet another, new, untried, untested, and inherently risky system?
McCarthy makes a national security court system seem so right, so compelled, but that is only because we have bought the lie that everything is different now. We have bought the line that the world after 9/11 is somehow vastly different than the world before, when all that has really changed is that violence against us has finally arrived at our own doorstep. But Europeans can tell you what it’s like, Middle Easterners can tell you, Africans can tell you, anyone else in the world can tell you what violence in your homeland to your own people does to you. Yet, it was in Europe that the Hague and Geneva Conventions were promulgated after the Great War (now called World War I). It was there that after the Second World War the Nuremburg trials were carried out under the rule of international laws and the Nuremburg Charter was set forth which allowed for no excuses or exceptions to these laws. And these precepts have been accepted and adopted worldwide and are now finally embodied, for the first time in world history, in an International Criminal Court, which the United States refuses to sign onto, while we say we need to make better protections by creating a new court system in our own country that ostensibly ignores those international laws and norms.
The second thing McCarthy fails to recognize, which arises in his article on torture, is that laws of combat and war require visible combat. Where you have combat operations against populations that are visibly carried out, it’s combat, whether the warring group is a sovereign nation or a disfavored group of insurgents, and if a person is found in active combat, the rules of war apply. This does not mean automatic POW status. The Geneva system of determining the status of a prisoner is adequate to the task of deciding this and where a person is not a legitimate POW, he is not accorded the protections of POW’s, and, in any case, where the laws of war are violated, he may be tried as a war criminal, either in a military tribunal or in a federal court. But where a person is not captured in active combat, he should be tried as criminal.
McCarthy engages in another fascinating and useful discussion and analysis, which leads him to the conclusion that torture warrants should be considered in conjunction with his proposed national security court system. McCarthy is surely correct that “many people–probably most people–who claim to be opposed to torture are not against it in all cases or in every form.” His wish, following on the model proposed by Alan Dershowitz in Why Terrorism Works, to “regulate how and under what circumstances [torture] could permissibly be done” — the idea that we should regulate what we don’t want to look at it, because we let someone else do it secretly in the dark anyway, the idea to bring this consideration out into the open — is well-intentioned, but wrong. Why? Because regulating rather than forbidding a wrong act makes it seem right.
Israel learned this lesson the hard way. They legalized torture for awhile. According to Mark Bowden in his article The Dark Art of Interrogation, a 1987 commission led by the retired Israel Supreme Court Justice Moshe Landau made a series of recommendations which permitted interrogators to use “moderate physical pressure” and ‘nonviolent psychological pressure” in interrogating prisoners who had information that could prevent impending terror attacks. Such methods were allowed only in “ticking bomb scenarios.” However, “[t]welve years later the Israel Supreme Court effectively revoked this permission, banning the use of any and all forms of torture.” The use of coercive methods had apparently become increasingly widespread. “It was estimated that more than two thirds of Palestinians taken into custody were subjected to them.”
This should make obvious what is so deeply and fundamentally flawed with legalizing torture: if you are torturing two-thirds of all Palestinians, surely many of those people were not terrorists, but you have now just taught them how to hate and how to terrorize.
Unsurprisingly, according to Bowden, “[e]very effort to regulate coercion [in Israel] failed,” because:
“[i]n the abstract it was easy to imagine a ticking-bomb situation, and a suspect who clearly warranted rough treatment[, b]ut in real life where was the line to be drawn? Should coercive methods be applied only to someone who knows of an immediately pending attack? What about one who might know of attacks planned for months or years in the future?”
Thus, dilution of international human rights norms cannot be successful in fighting terrorism. As the president of the Israeli supreme Court, Ahron Barak, “a judge much respected around the world,” according to former New York Times columnist Anthony Lewis, wrote in 2002:
“Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. It is, therefore, not merely a war of the state against its enemies; it is also a war of the Law against its enemies.”
A system of justice that is kept separate from the core federal constitutional system–that is, outside the protections of the Constitution and international laws — is dangerous to democracy. Already our Supreme Court has lied to us about how it is undermining the Constitution. What would another parallel court, a secret court, do to our justice system? Instead of considering torture warrants and national security courts, which would lead to abuse of law and loss of human rights protections for all of us, increasing our enemies and making the world more unsafe, we need to learn the lessons of our own sometimes violent history and recall and reclaim the fundamental, lost ideals that we have forgotten.
 Lynne Stewart, who has been accused of providing material support to terrorists, was Rahman’s defense attorney and it is her post-trial representation of him that led to the indictment against her.
 Andrew C. McCarthy, Torture: Thinking About the Unthinkable (July-August 2004), www.benadorassociates.com/article/5900.
 Andrew C. McCarthy, Abu Ghraib & Enemy Combatants (May 11, 2004),
 McCarthy, Abu Ghraib. (All quotes in this section are from this article, unless or until noted.)
 McCarthy, Torture. All subsequent quotes are from this article, unless otherwise noted.
 Mark Bowden, The Dark Art of Interrogation (Atlantic Monthly, October 2003), http://www.theatlantic.com/issues/2003/10/bowden.htm.
 Oddly, despite this one and only example of the result of regulated torture, Bowden nonetheless concludes that torture should be permitted.
 Bowden, Interrogation.
 Anthony Lewis, One Liberty at a Time (MOJO May/June 2004) (p. 78 in print edition),
 See JENNIFER VAN BERGEN, Hamdi & the End of Habeas Corpus: The Death of the Great Writ of Liberty (Counterpunch, July
JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, coming out September 1, 2004, Common Courage Press. She is one of the foremost experts on the USA PATRIOT Act and has taught anti-terrorism law at the New School University. This article is an excerpt from the book.